(fi    Culver  &  Page, 

£3  BINDERS' 

y      AJTD  BLANK  BOOK      ' 

|j  ISO  Lake  st.Ohicaato.! 

PRACTICAL  TREATISE 

ON    THE 

POWERS  AND  DUTIES 

OP 

JUSTICES  OF  THE  PEACE 

AND 

CONSTABLES, 

IN    THE    STATE    OF   ILLINOIS, 


WITH    THE    NECESSARY    FORMS    OF    PROCEEDING;     EMBRACING    ALSO,    A 

COLLECTION    OF  ORIGINAL    AND    SELECTED    FORMS,   FOR    POPULAR 

USE    IN    THE    TRANSACTION    OF    BUSINESS. 


BY  ELIJAH  M,  HAINES, 

COUNSELOR    AT   LAW. 


CHICAGO: 
PUBLISHED    BY    KEEN    &   LEE. 

1855. 


Entered  according  to  the  Act  of  Congress  in  the  year  1855,  by 

ELIJAH    M.   HAINES, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  for  the  Northern  District 

of  Illinois. 


SCOTT     &     FULTON, 
PRINTERS,    CHICAGO. 


HAINES'    TREATISE. 


The  following  are  among  the  many  favorable  notices  of  this  Work, 
which  have  been  given  by  the  Press  of  this  State  : 

From  the   Greenville  Journal. 

"  The  work  lias  been  prepared  by  a  gentleman  every  way  qualified  for  tbe 
undertaking,  and  by  whom  no  pains  has  been  spared  in  making  it  the  most  con- 
cise and  useful  work  of  the  kind  yet  offered  to  the  public-  in  the  State. 

"  It  embraces  references  to,  and  copious  extract-  th»  statute  laws  in  force 

relative  to  the  powers  and  duties  of  Justices  and  ^  hies,  from  the  Revised 

Statutes  of  1845  to  the  session  laws  of  1855,  thereby  &  ishing  to  those  officers 
so  much  of  the  statute  laws  as  may  be  necessary  to  guide  them  in  their  respective 
duties,  which  they  can  now  scarcely  obtain  from  other  sources." 

From  the  Macoupin  Spectator. 

"  It  will  supply  a  desideratum  long  felt  amongst  magistrate  and  constab'es, 
and  from  the  very  copious  table  of  contents  we  perceive  that  it  covers  the  whole 
ground,  from  the  election  of  these  officers  to  the  minutest  details  of  their  duties. 
A  reference  to  its  pages  will  save  those  interested  a  great  deal  of  perplexity  and 
labor." 

From  the  Tazewell   Weekly  Mirror. 

"  The  forthcoming  work  will  doubtless  be  one  which  has  long  been  needed  by 
Justices  and  Constables  in  this  State,  as  they  have  had  to  depend  on  the  Statute, 
which  in  many  instances  furnishes  no  guide  whatever  to  the  mode  of  procedure.' 
This  work  is  intended,  and  from  the  reputation  of  its  author,  we  have  no  doubt 
it  will  supply  the  deficiency  that  has  heretofore  existed  for  want  of  a  guide  to 
those  officers  in  the  performance  of  their  duties. 

"The  author  of  this  work  is  also  the  author  of  a  compilation  of  the  laws  of 
the  State  relative  to  Township  Organization." 

The  following  extract  from  the  Chicago  Daily  Tribune  of  Sept.  18, 
1855,  shows  the  favor  with  which  the  Work  has  been  received  at  home, 
where  the  author  and  publishers  are  best  known  : 

"  The  book  is  being  very  creditably  printed,  and  will  compare  well  with  the 
law  publications  of  Philadelphia.  The  Board  of  Supervisors  of  this  (Cook) 
county,  at  their  last  meeting,  passed  the  following  resolution  in  regard  to  this 
work  : 

"  On  motion  of  Supervisor  Cool,  it  was 

'Resolved,  That  there  be  a  sufficient  number  of  copies  of  the  Practical  Trea- 
tise on  the  Powers  and  Duties  of  Justices  of  the  Peace  and  Constables,  (by 
E.  M.  Haines,)  purchased  at  the  expense  of  the  county,  so  that  each  Justice 
and  Supervisor  may  have  a  copy.' " 


HAINES'   TOWNSHIP  ORGANIZATION. 


A  COMPILATION  OF  THE 

GENERAL  LAWS  OF  THE  STATE  OF  ILLINOIS 

RELATIVE   TO 


TO    WHICH   ARE   ADDED 


Numerous  Practical  Forms  and  Notes  iviili  References  to  Decisions  of  the  older 
States  on  questions  upon  like  Statutes, 

WITH  A  COPIOUS  INDKX. 


BY  ELIJAH  M.  HAINES,  Counselor  at  Law. 


Published  by  KEEN  &  LEE,  No.  146  Lake  Street,  Chicago,  Illinois. 

Price  Fifty  Cents.     Orders  by  mail,  addressed  to  the  Publishers,  promptly 
attended  to. 

NEW  EDITION  OF  THE 

REVISED  STATUTES  OF  ILLINOIS, 

1856. 

The  attention  of  the  public  is  respectfully  called  to  the  fact  that  a  new  and 
complete  edition  of  the  REVISED  STATUTES  OF  ILLINOIS,  being  a  compilation 
of  the  Statutes  of  the  State  of  Illinois,  of  a  general  nature,  in  force  January  1st, 
1856,  collected  with  reference  to  Decisions  of  the  Supreme  Court  of  said  State, 
and  to  prior  Laws  in  relation  to  the  same  subject  matter,  is  now 

IN    PREPARATION    BY    THE 

HON.  NORMAN  H.  PURPLE, 

OF   PEORIA,    ILLINOIS, 

And  will  be  issued  in  a  few  months.  No  expense  will  be  spared  to  make  this 
work  a  complete  and  valuable  Edition  of  the  Laws  of  Illinois. 

Such  a  work  has  been  long  and  urgently  demanded,  by  the  members  of  the 
Bar,  and  the  public  generally,  and  we  congratulate  ourselves  and  them,  on  hav- 
intercstcd  a  gentleman  of  such  high  legal  attainments,  in  its  preparation.  The 
mechanical  part  of  the  work  will  be  executed  in  the  best  manner.  The  whole 
when  completed,  will  be  contained  in  One  Volume  of  about  1000  pages. 

Price  Seven  Dollars,  on  receipt  of  which  sum,  a  copy  will  be  sent  to  the  per- 
son remitting,  free  of  further  charge. 

KEEN  &  LEE, 

BOOKSELLERS  AND  PUBLISHERS, 

No.  146  Lake  Street,  Chicago,  111. 


PREFACE 


THE  object  and  design  of  this  Work,  as  indicated  by  the  title,  is  to 
furnish  to  JUSTICES  OF  THE  PEACE  and  CONSTABLES,  a  summary  of  the 
law  in  relation  to  their  powers  and  duties,  with  all  the  necessary  forms 
of  proceeding.  But  a  short  space  of  time  has  been  allotted  for  the 
preparation  of  the  work,  and  its  progress  has  been  attended  with  many 
perplexing  difficulties ;  the  author,  nevertheless,  flatters  himself  that  he 
is  enabled  to  present  to  those  officers  of  the  law,  for  whose  benefit  it 
has  been  more  immediately  intended,  such  a  work  as  they  have  long 
been  in  need  of,  to  guide  them  in  the  discharge  of  those  important 
duties  which  they  have  taken  upon  themselves  to  perform. 

Much,  it  is  true,  has  already  been  written  upon  the  subject  of  the 
duties  of  Magistrates,  and  our  libraries  are  favored  with  the  excellent 
and  popular  works  of  Cowen,  Barbour,  Edwards,  Pennington,  Swan 
and  others ;  yet  the  local  legislation  of  the  various  States,  calls,  in  each 
instance,  for  a  work  more  immediately  adapted  to  the  peculiar  legislation 
of  such  States.  The  treatise  of  Mr.  Cotton,  prepared  in  1844,  as 
also  that  prepared  by  Mr.  Asbury  in  1850,  are  now  entirely  out  of 
print.  These  have  been  the  only  works  prepared  for  the  use  of 
Justices  of  the  Peace  in  this  State.  They  were  both  equally  deserv- 
ing of  the  favor  which  they  received ; — but  since  the  publication  of 
those  works,  our  statute  laws  have  been  materially  changed  in  many 
respects,  and  a  work  adapted  to  our  present  statutes,  seems  to  be 
earnestly  demanded  at  the  present  time. 

It  has  been  the  design  of  the  author  to  give  all  such  forms  as  both 
Justices  and  Constables  would  require  to  aid  them  in  the  discharge  of 
their  respective  duties ;  the  collection  which  the  work  embraces,  includes 


IT  PREFACE. 

those  both  original  and  selected.  For  the  selected  forms,  the  author 
is  indebted  to  Edwards'  Treatise,  third  edition,  Barbour's  Criminal 
Law,  Cotton's  Treatise,  Asbury's  Justice,  and  the  late  excellent  edition 
of  Cowen's  Treatise,  by  William  Tracy,  Esq.  A  collection  of  original 
and  selected  forms  for  common  use  in  the  transaction  of  business,  has 
also  been  added,  trusting  that  it  may  render  the  work  not  only  more 
acceptable  to  the  Justice,  but  that  it  may  be  found  generally  useful  to 
the  business  man.  The  country  Magistrate  is  invariably  the  person 
upon  whom  his  neighbors  rely  for  their  conveyancing,  the  drafting  of 
their  contracts,  and  generally  the  preparing  of  all  such  writings  as 
may  be  required  in  the  course  of  their  business  transactions ; 
hence  the  collection  of  Forms  contained  in  Part  Fifth  will  be  found 
almost  indispensable  to  the  Justice  in  the  discharge  of  his  duties. 

Some  few  typographical  errors  have  been  discovered  in  the  work, 
but  too  late  for  correction ;  these,  however,  will  readily  be  observed 
by  the  reader,  and  the  intention  will  no  doubt  be  at  once  understood. 

The  author  would  here  take  occasion  to  express  his  gratitude  to  his 
friends,  and  especially  to  the  members  of  the  Waukegan  Bar,  for  the 
interest  they  have  so  warmly  manifested  in  his  success,  and  for  their 
many  kind  offices  in  affording  him  such  aid  as  he  has,  from  time  to 
time,  solicited  in  preparing  the  following  pages. 

THE  AUTHOR. 
WAUKEGAN,  ILL.,  1855. 


CONTENTS. 


PART    FIRST. 

OF  JUSTICES  OF  THE  PEACE,  THEIE  ELECTION  AND  QUALI- 

CATION,    AND  PROCEEDINGS  BEFORE  THEM 

IN  CIVIL  CASES. 


CHAPTER    I. 

OF    THE    OFFICE   OF    JUSTICE    OF    THE   PEACE. 

I.     Of  the  Justice,  17-19 

II.     Of  the  Election  of  Justices,  19 

1.  In  Counties  not  adopting  Township  Organization,  20,  21 

2.  In  Counties  adopting  Township  Organization,  21,  22 
HI.     Of  Qualification,  22-24 
IV.     Of  Resignations,  24,  25 


CHAPTER   II. 

OF   THE   JURISDICTION   OF  JUSTICES   OF   THE   PEACE   IN  CIVIL  CASES. 

I.     Of  what  the  Justice  has  Jurisdiction  to  hear  and  de- 
termine, 26-29 
II.     Of  Jurisdiction  of  the  Subject  Matter,  29 

III.  Of  Jurisdiction  of  the  Person,  30,  31 

IV.  Of  Proceedings  without  Jurisdiction,  31 


CHAPTER    III. 

OF    THE   DIFFERENT    FORMS    OF    ACTIONS. 

I.     What  Actions  may  be  brought  before  Justices  of  the 

Peace,  32 

II.     Of  the  Action  of  Debt,  33 

HI.     Of  the  Action  of  Covenant,  33,  34 

IV.     Of  the- Action  of  Assumpsit,  34,  35 


0  CONTENTS. 

V.     Of  the  Action  of  Trespass,  36-39 

1.  Of  this  Action  generally,  36 

2.  Injuries  to  Personal  Property,  36,  37 

3.  Injuries  to  Real  Property,  37-39 
VI.     Of  theAction  of  Trover,  39 


CHAPTEE    IV. 

OF    THE    COMMENCEMENT    OF    SUITS,    AND   THE    SERVICE    AND   KETUBN 
OF   PKOCESS. 

I.  How  Suits  may  be  instituted,  40 
II.     Of  the  Process  of  Summons,  and  Forms  thereof,  40-46 

III.  Of  the  Warrant,  and  Forms  thereof,  46-48 

IV.  Of  the  Arrest,  and  Special  Bail,  48-52 

1.  Of  the  Arrest,  48 

2.  Of  Persons  privileged  from  Arrest,  48,  49 

3.  Of  Special  Bail,  49-52 
V.     Of  Suits  by  the  voluntary  Agreement  of  the  Parties,  52 

VI.     General  Rules  applicable  to  the  Summons,  Warrant,  or 

Writ  of  Attachment,  52-54 

VII.     Of  security  for  costs,  54,  55 

CHAPTER    V. 

OF    THE    APPEARANCE    OF    THE    PARTIES. 

I.     Of  Appearance  of  Parties  of  full  Age,  56,  57 

II.  Of  Appearance  of  Infants,  57,  58 
III.     Of  Default  or  Want  of  Appearance,    and  the  Effect 

thereof,  58,  59 

CHAPTER    VI. 

OF    PLEADINGS. 

I.     Of  Pleadings  in  General,  60,  61 

II.  Of  the  proper  Parties  to  the  Action,  61,  62 

1.  Plaintiffs,  61,  62 

2.  Defendants,  62 

III.  Of  Pleadings  which  usually  occur  in  Justices'  Courts,  62,  63 

IV.  Of  the  Declaration,  63-66 
V.     Of  Pleadings  on  the  Part  of  the  Defendant,  66-77 

1.  When  incumbent  on  the  Defendant  to  Plead,  66 

2.  Of  Pkas  to  the  Jurisdiction  and  in  Abatement,  66-71 

3.  Of  Pleas  in  Bar,  71-73 


CONTENTS.  / 

X 

4.  Of  Set-Off,  73-75 

5.  Of  Pleas  puis  darrein  continuance,  75 

6.  Of  Pleading  Title,  75-77 
VI.     Of  the  Replication,  77 

VII.     Of  Demurrers,  77,  78 

CHAPTER    VII. 

OF    WITNESSES,    COMPELLING  THE  ATTENDANCE  THEREOF,    TAKING  DEPO- 
SITIONS,   AND    OF    OATHS    AND   AFFIRMATIONS. 

I.     Of  compelling  the  Attendance  of  Witnesses ;  and  herein, 

1.  Of  the  Subpoena,  and  Service  thereof,  79,  80 

2.  Of  the  Fees  allotved  to  Witnesses,  80,  81 

3.  Of  proving  Demand,  Discount  or  Set- Off  by 
adverse  Parly,  81,  82 

4.  Of  Attachment  against  defaulting  Witness,          82,  83 
II.     Of  taking  Depositions,  83-90 

III.     Of  Oaths  and  Affirmations,  90,  91 


CHAPTER    VIII. 

OF    THE   TRIAL,     AND    INCIDENTS   THERETO. 

I.     Of  Incidents  occurring  previous  to  the  Trial,  92-95 

1.  Of  Continuance,  92,  93 

2.  Of  Change  of  Venue,  or  removing  the  Cause 
from  one  Justice  to  Another,  94,  95 

II.     Of  Trial  in  the  Absence  of  the  Defendant,  95 

III.  Of  Trial  before  the  Justice  without  a  Jury,  95,  96 

IV.  Of  Trial  by  Jury,  96-103 

1.  When  the  Jury  shall  be  demanded,  and  how  ob- 
tained, 96,  97 

2.  Who  shall  be  competent  to  serve  as  Jurors,  98 

3.  Proceedings  against  defaulting  Jurors,  98,  99 

4.  Of  Challenges,  99-103 

5.  Of  Swearing  the  Jury,  103 
V.     Of  Proceedings  on  the  Trial,  103-109 

VI.     Of  referring  the  Difference   between  the  Parties  to  Ar- 
bitrators, 109-112 

CHAPTER    IX. 

OF    EVIDENCE. 

I.     Of  the  Nature  of  Evidence,  113-116 

II.     Of  the  Competency  of  Witnesses,  116-121 


IV.    Of  WiJtfcalhMMi,  122-125 

1.  <y/fclfir«Brf/*vMfe  WrUay^  122,123 

2.  Of  At  Pipttf  tf  Prtvtte  Wntutyt,  123,  124 

3.  Of  Pn*f<f  yfaiJaritoy,  124.125 

I  flf  '  »>  -   *~-  imff^m  -       -    -  tAZ 

-  ftwffty  frwOStmUiyf  ^DVW  •  t/WMC^  .  _ 

V.     Of  Anl  BnBBMe,  to  cxyfam,  vaiy  or  ooBtradxs 

TT~ _'-  i T  -*  IAS       1«M^ 

viHHBK  ZIBDMBCH^  -_        


CHAPTER    X. 


:_--: 

:    -: 

%  J«ry.  130. 131 


CHAPTER    XI. 

«; 

L    c»f 

139-141 

141.142 


CONTENTS.  9 

CHAPTER  XII. 

OF    APPEALS   AND   WRITS    OF   CERTIORABI. 

I.     Of  Appeals,  143-145 

II.     Of  Certiorari,  146,  147 


CHAPTER   XIII. 

OF  EXECUTION  AND  GARNISHMENT. 

I.     Of  the  Execution,  its  Office  and  Nature,  148 

El.     Of  Executions  against  the  Goods  and  Chattels,  148-151 

m.     Of  Executions  against  the  Body,  151-154 

VI.     Of  Garnishment,  154-156 


PART    SECOND. 

OF  PROCEEDINGS  BEFORE  JUSTICES  OF  THE  PEACE 
CRIMINAL  CASES. 


CHAPTER    I. 

OF  THE  POWERS  OF  JUSTICES  OF  THE  PEACE  RELATIVE  TO  THE 
ENFORCEMENT  OF  THE  LAWS  FOR  THE  PREVENTION  AND 
PUNISHMENT  OF  OFFENSES,  AND  PRESERVATION  AND  OBSERV- 
ANCE OF  THE  PEACE,  157,  158 


CHAPTER    II. 

OF    PERSONS    CAPABLE    OF    COMMITTING    CRIMES,    OF    ACCESSORIES,    AND 
WHO    MAY   BE    WITNESSES    IN    CRIMINAL   CASES. 

I.     Of  Persons  capable  of  committing  Crimes,  159—161 

II.     Of  Accessories  to  Crimes,  161 

III.     Who  may  be  Witnesses  in  Criminal  Cases,  161 


CHAPTER    III. 

OF    PROCEEDINGS    WHERE    A    CRIMINAL   OFFENSE   HAS    BEEN   COMMITTED. 

I.     Duty  of  the  Justice   on  Complaint  that   a  Criminal 

Offense  has  been  committed,  162-164 

H.     Of  the  Complaint,  164-166 

m.     Of  the  Warrant,  166-172 

IV.     Of  the  Arrest.  172 

V.     Of  the  Examination,  173-178 

VI.     Of  Proceedings  subsequent  to  the  Examination,  178-192 
1.   Of  the  Discharge, 
•2.   Of  Bail  and  Eecoynizance, 


10  CONTENTS. 

3.  Of  Commitment,  181-185 

4.  Of  Recognizance  of  Witnesses,  185-190 

5.  Of  Bail  after  Commitment,  190-192 


CHAPTER   IV. 

FORMS   OF    STATEMENTS   OF   OFFENSES   IN   WARRANTS. 

I.     Offenses  against  the  Persons  of  Individuals,       .        193-201 
II.     Crimes  and  Offenses  against  Habitations  and  other 

Buildings,  202, 203 

IH.     Crimes  and  Offenses  relative  to  Property,  204-209 

IV.     Forgery  and  Counterfeiting,  209-214 

V.     Crimes  and  Offenses  against  Public  Justice,  214—222 

VI.     Offenses  against  the  Public  Peace  and  Tranquility,  223,  224 

VII.     Offenses   against  the   Public   Morality,  Health   and 

Police,  225-230 

VIII.     Offenses  committed  by  Cheats,  Swindlers  and  other 

fraudulent  Persons,  230-232 

IX.     Fraudulent  and  Malicious  Mischief,  232,  233 


CHAPTER   V. 

OF     PROCEEDINGS    IN    RELATION    TO    THE    OBSERVANCE    AND 

SURETY   OF   THE    PEACE    AND    GOOD    BEHAVIOR,  234-240 


CHAPTER   VI. 

OF    FUGITIVES    FROM    JUSTICE,  241-245 

CHAPTER   VII. 

OF    SEARCH    WARRANTS,  246-249 


CHAPTER    VIII. 

OF     PROCEEDINGS     IN    RELATION    TO  VARIOUS     MISDEMEANORS,     BY    AT- 
TEMPTING  TO    INFLUENCE   ELECTORS;     OF    SABBATH-BREAKING, 
AND    OF   DISTURBING    WORSHIPING    ASSEMBLIES. 

I.     Of  Penalties,  and  Manner  of  Proceeding  by  Justice,  250-252 
II.     Forms  of  Proceeding  in  case  of  Sabbath-Breaking,       252-255 
III.     Forms  of  Proceeding  in  case  of  disturbing  Worshiping 

Assemblies,  255-258 


CONTENTS.  11 

CHAPTER    IX. 

OF    PROCEEDINGS     IN     CASE     OF    ASSAULT,    ASSAULT    AND     BAT- 
TERY,   AND    AFFRAYS,  259-268 


CHAPTER    X. 

OP  DOCKET  ENTRIES  IN  CRIMINAL  AND  SUMMARY    PROCEEDINGS, 

AND  FORMS  THEREOF,  269-271 


CHAPTER    XI. 

OF  JUSTICES'  FEES  IN  CRIMINAL  CASES,  272 


PART    THIRD. 

OF  THE  POWERS  AND  DUTIES  OF  JUSTICES  OF  THE  PEACE 
UNDER  PARTICULAR  STATUTES. 


CHAPTER    I. 

OF    ATTACHMENTS    BEFORE    JUSTICES    OF    THE    PEACE. 

I.     Of  the  Ordinary  Proceeding  by  Attachment  against  the 

Goods  and  Chattels  of  the  Defendant,  273-281 

II.     Of  the  Attachment  of  Boats  and  Vessels,  281-288 


CHAPTER    I_I. 

OF    THE   ACKNOWLEDGMENT    AND    PROOF    OF    DEEDS  AND  OTHER 

INSTRUMENTS,  289-296 


CHAPTER    III. 

OF    BASTARDY,    AND    PROCEEDINGS    IN    CASES    THEREOF,  297-303 


CHAPTER   IV. 

OF   CONTEMPT    OF   COURT,  304-307 

CHAPTER    V. 

OF    DISTRESS    FOR    RENT,  308-313 


CHAPTER    VI. 

OF    CONTESTING    ELECTIONS,  314-319 


12  CONTENTS. 

CHAPTER    VII. 

OP   ESTRAYS,  320-333 


CHAPTER    VIII. 

OV   FORCIBLE    ENTRY    AND    DETAINER,  334-345 


CHAPTER    IX. 

OP    INCLOSURES    AND    FENCES,  346-354 


CHAPTER    X. 

OF    MARRIAGES,  355-358 


CHAPTER    XI. 

OF  TRIAL  OP  THE  RIGHT  OF  PROPERTY,  359-366 


A  PART    FOURTH, 

OF  THE  CONSTABLE,   HIS  ELECTION  AND   QUALIFICATION, 

AND  THE  POWEES  AND  DUTIES  OF  CONSTABLES 

IN  BOTH  CIVIL  AND  CRIMINAL  CASES. 


CHAPTER    I. 

OF    THE    OFFICE    OF    CONSTABLE. 

I.     Of  the  Constable,  367-369 

II.     Of  the  Election  of  Constable,  369,  370 

1.  In  Counties  not  adopting  Township  Organization,  395 

2.  In  Counties  adopting  Township  Organization,  369,  370 

III.  Of  Qualification,  370-375 

1.  In  Counties  not  adopting  Township  Organiza- 

tion, 370-372 

2.  In  Counties  adopting  Township  Organization,  372-375 

IV.  Special  Constables,  when  and  how  appointed,  375,  376 


CHAPTER   II. 

POWERS    AND    DUTIES    OF    CONSTABLES     IN  CIVIL    PROCEEDINGS. 

I.     Of  the  Service  and  Return  of  Process ;  and  herein, 

1.  Of  the  Summons,  377,  378 

2.  Of  the  Warrant,  378,  379 

3.  Of  the  Venire,  379,  380 

4.  Of  the  Writ  of  Attachment,  380,  381 

5.  Of  the  Execution,  381,  384 


CONTENTS.  13 

CHAPTEK    III. 

OF    THE    LIABILITY    OF    CONSTABLES    AND    SURETIES,  385,  386 


CHAPTEK    IV. 

OF  THE  POWERS  AND  DUTIES  OF  CONSTABLES  IN  CRIMINAL  CASES. 

I.     His  Powers  generally,  381-388 

II.    Of  Arrests,  388,  389 


CHAPTER    V. 

OF  FEES   AND   COMPENSATIONS  ALLOWED  TO  CONSTABLES  IN  BOTH 

CIVIL  AND   CRIMINAL  CASES,  390,  391 


PART  FIFTH. 

COMMON  FORMS  FOR  THE  TRANSACTION  OF  BUSINESS. 

I.     Apprentices,  392-396 

H.     Arbitrations  and  Awards,  397-399 

IE.     Agreements,  400-402 

IV.     Assignments,  402-411 

V.     Bills  of  Exchange  and  Promissory  Notes,  412,  413 

VI.     Bills  of  Sale,  414,  415 

VII.    Bonds,  415-417 

VIII.     Copartnership,  418-422 

IX.     Conveyances,  422-425 

X.     Leases,  426-428 

XI.    Powers  of  Attorney,  429-432 

XII.     Releases,  432, 433 

Wills,  433-435 

INDEX,  437-459 


GLOSSARY. 

GIVING  THE  DEFINITION  OF  TERMS  AND  PHRASES  USED  IN  THIS  WORK. 


Ab  initio.    From  the  beginning. 

Ante.    Reference  to  a  preceding  page. 

Assumpsit.    He  undertook  (or  promised.) 

Bona  fide.     In  good  faith. 

Capias.     "  You  may  take."    A  writ  authorizing  the  defendant's  arrest. 

Capias  ad  satisfaciendum.     That  you  take  (defendant)  to  make  satisfaction. 

Certiorari.     To  be  certified  of ;  to  be  informed  of. 

Chose  in  action.  Things  personal,  not  in  possession,  for  which  the  owner  has 
the  right  of  recovery  by  action. 

Cognovit  actionem.  "  He  has  acknowledged  the  action."  After  suit  brought, 
the  defendant  frequently  confesses  the  action  ;  judg- 
ment is  then  entered  on  the  record,  without  trial ;  or 
the  defendant  signs  an  instrument,  called  a  cognovit. 

Conservator®  pads.    Keepers  of  the  peace.    . 

Consideratuin  est  per  curiam.    It  is  considered  by  the  court. 

Coram  non  judice.    Not  before  a  judge  ;  at  an  improper  tribunal. 

De  bonis  asportatis.     Of  goods  carried  away. 

De  novo.    Anew ;  afresh. 

De  probioribus  et  potentioribus  comitatus  sui  in  custodus  pads.  Concerning  the 
more  worthy  and  capable  persons  of  his  county  (to  be) 
keepers  of  the  peace. 

Eo  nomine.     Under  that  name. 

Escrow.  A  deed  or  writing  left  with  another,  to  be  delivered  on  the  perform- 
ance of  something  specified. 

Ex  delicto.    From  (or  by)  an  offense  (or  crime.) 

Ex  parte.    On  one  part. 

Feme  covert.    A  married  woman. 

Feme  sole.     An  unmarried  woman. 

Fieri  fadas.  That  you  cause  to  be  made  or  done ;  or  levied.  A  writ  of 
execution  so  called. 

In  numero.    In  number  (or  amount.) 

Locus  in  quo.     The  place  in  which. 

Maleficium.     A  wrong  act. 

Nolle  prosequi.  "  To  be  unwilling  to  proceed."  Used  in  criminal  cases  when 
further  proceedings  are  discontinued.  „ 

Nomine penae.    By  way  of  penalty  (or  punishment.) 

Non  culpabilis.     Not  guilty. 

Non  est  factum.    It  is  not  his  deed. 


ABRREVIATIONS.  15 

Nul  tiel  record.     No  such  record. 
Post.     Reference  to  a  subsequent  page. 
Pro  tern.    For  the  time  being. 
Propter  affectum.     On  account  of  partiality. 
Propter  defectum.   (0n  account  of  some  defect  (as  age,  &c.) 
Propter  delictum.    Because  of  an  offense  (or  crime.) 
Prima  facie.    At  first  view  or  appearance. 

Puis  darrein  continuance.     Since  the  last  continuance  (or  adjournment.) 
Quare  clausumfregit.     Wherefore  (or  why)  did  he  break  the  close  ? 
Qui  tarn.    Who  as  well. 
Res  gesta.    The  subject-matter ;  things  done. 
Respondeat  ouster.     That  he  answer  over. 
Scire  facias.    That  you  make  known. 

Subpoena  duces  tecum.     "Bring  with  you  under  a  penalty."    The  name  of  a 

writ  by  which  a  witness  is  commanded  to  produce 

something  in  his  possession,  to  be  given  in  evidence. 

Supersedeas.     "  You  may  remove  or  set  aside."    A  writ  so  called  to  stay 

proceedings. 

Tort.     A  wrong ;  an  injury. 
Tort  feasor.    A  wrong-doer ;  a  trespasser. 
Vi  et  armis.    By  force  and  arms  ;  by  unlawful  means. 
Voir  dire.     To  speak  truly  ;  to  tell  the  truth. 


EXPLANATION    OF   ABBREVIATIONS 

DSED    IN    THIS    WORK. 


Bab.  Set  Off.  Babbington  on  Set  Off. 

Bac.  Ab.  Bacon's  Abridgment. 

Barb.  Grim.  L.  Barbour's  Criminal  Law,  New  York. 

Barn.  &  Ores.  Barnewall  &  Creswell's  Eeports,  English. 

Bin.  Binney's  Reports,  Supreme  Court,  Penn. 

Bl.  Com.  or  Black.  Com.  Blackstone's  Commentaries. 

Blackf.  Blackford's  Reports,  Indiana. 

Bouv.  L.  D.  Bouvier's  Law  Dictionary. 

Breese  or  Breese  R.  Breese's  Reports,  Illinois. 

Bull.  N.  P.  Buller's  Nisi  Prius,  English. 

Bun-.  Burrow's  Reports,  English. 

Caines.  Games'  Reports,  New  York. 

Chit.  Crim.  L.  Chitty's  Criminal  Law. 

Chit.  PI.  Chitty's  Pleadings.* 

Co.  Litt.  Coke  on  Littleton. 

Com.  Con.  Comyn  on  Contracts. 

Const.  111.  Constitution  of  Illinois. 

*  The  work  referred  to  is  the  Springfield  edition,  1837. 


16 


ABBREYIATIONS. 


Cot.  Tr. 

Co  wen. 

Cowen  Tr.  or  Cowen's  Tr. 

Cro.  Jac. 

Dalt.  Just. 

Davis'  Just. 

Dougl. 

Dougl.  Mich.  R. 

East. 

East's  P.  C. 

Edw.  Tr. 

Esp. 

Fost. 

Gil.  or  Gilm. 

Gould  PL 

Green. 

Greenl. 

Greenl.  Ev. 

Haines'  Town.  Org. 

Hale's  P.  C. 

Hawk.  P.  C. 

Hill. 

Ibid. 

Id. 

111. 

Johns. 

Johns.  Cas. 

Ld.  Raym. 

M.  &  M. 


Peake's  R. 

Penn.  on  Sm.  Cau. 

Phil.  Ev. 

Rawle  R. 

Rev.  Stat. 

Salk. 

Saund. 

Scam. 

Sess.  Laws. 

Stark  or  Stark  Ev. 

Swan's  Tr. 

T.R. 

Taunt. 

Tidd  or  Tidd'a  Pr. 

Wend. 

Willes  or  Willcs'  It. 

Wright's  R. 


Cotton's  Treatise. 

Cowen's  Reports,  New  York. 

Cowen's  Treatise. 

Croke's  Reports  during  James  I. 

Dalton's  Justice. 

Davis'  Justice. 

Douglas'  Reports,  English. 

Douglas'  Reports,  Michigan. 

East's  Reports,  English. 

East's  Pleas  of  the  Crown. 

Edward's  Treatise,  New  York. 

Espinasse's  Reports. 

Foster's  Reports,  English. 

Gilman's  Reports,  Illinois. 

Gould's  Pleading. 

Green's  Reports,  New  Jersey. 

Greenleaf  s  Reports,  Maine. 

Greenleaf  s  Treatise  on  the  Law  of  Evidence. 

Haines'  Township  Organization. 

Hale's  Pleas  of  the  Crown. 

Hawkin's  Pleas  of  the  Crown. 

Hill's  Reports,  New  York. 

Ibidem,  (in  the  same  place.) 

Idem,  (the  same.) 

Illinois  Reports. 

Johnson's  Reports,  New  York. 

Johnson's  Cases,  New  York. 

Lord  Raymond. 

Moody  &  Malkin's  Reports,  English. 

Massachusetts  Reports. 

Peake's  Reports,  English. 

Pennington  on  Small  Causes,  New  Jersey. 

Phillip's  Evidence. 

Rawle's  Reports,  Penn. 

Revised  Statutes. 

Salkeld's  Reports,  English. 

Saunders'  Reports,  English. 

Scammon's  Reports,  Illinois. 

Session  Laws. 

Starkie  on  the  Law  of  Evidence. 

Swan's  Treatise. 

Term  Reports. 

Taunton's  Reports,  English. 

Tidd's  Practice. 

Wendell's  Reports. 

Willes'  Reports,  English. 

Wright's  Reports,  Ohio. 


POWERS  AND  DUTIES 

OF 

JUSTICES    OF    THE    PEACE. 


PART    FIRST. 

OF   JUSTICES  OF  THE  PEACE,  THEIR   ELECTION  AND   QUALIFICA- 
TION, AND  PROCEEDINGS  BEFORE  THEM  IN  CIVIL  CASES. 


CHAPTER    I. 

OF  THE  OFFICE  OF  JUSTICE  OF  THE  PEACE. 

I.  OF  THE  JUSTICE. 
II.  OF  THE  ELECTION  OF  JUSTICES. 

1.  In  Counties  not  adopting  Town  Organization. 

2.  In  Counties  adopting  Town  Organization. 

III.  OF  QUALIFICATION. 

IV.  OF  KESIGNATIONS. 

I.    OF  THE  JUSTICE. 

Justices  of  the  peace  are  defined  to  be  public  officers  invested  with 
judicial  powers  for  the  purpose  of  preventing  breaches  of  the  peace 
and  bringing  to  punishment  those  who  have  violated  the  law.1  They 
are  so  called,  says  DALTON,  because  they  be  judges  of  record,  and 
withal,  to  put  them  in  mind  (by  their  name)  that  they  do  justice, 
which  is,  to  yield  to  every  man  his  own,  according  to  the  laws,  cus- 
toms, and  statutes,  without  respect  of  persons.  The  common  law  has 
ever  had  a  special  care  and  regard  for  the  conservation  of  the  peace ; 
for  peace  is  the  very  end  and  foundation  of  civil  society — and,  there- 
fore, before  the  constitution  of  justices  was  invented  in  England, 
there  were  peculiar  officers  appointed  by  the  common  law  for  the 
maintenance  of  the  public  peace,  and  were  called  conservatores  pads. 

(I)  Bouv.  L.  D.  751. 


18  OF    THE   JUSTICE.        ^ . .  [PART    1, 

They  were  simply  conservators  of  the  peace,  which  power  they  either 
claimed  by  prescription,  or  were  bound  to  exercise  it  by  the  tenure  of 
their  lands ;  or,  lastly,  were  chosen  by  the  freeholders  in  full  county 
court  before  the  sheriff;  the  writ  for  their  election  directing  them  to  be 
chosen  "  de  probioribus  et  potentioribm  comitatus  sui  in  custodus  pa- 
ds" (concerning  the  more  worthy,  and  capable  persons  of  his  county 
(to  be)  keepers  of  the  peace.)  But  when  Queen  Isabel,  the  wife  of 
Edward  II.  had  contrived  to  depose  her  husband  by  a  forced  resigna- 
tion of  the  crown,  and  had  set  up  his  son  Edward  III.  in  his  place ;  this 
being  a  thing  then  without  example  in  England,  it  was  feared  would 
much  alarm  the  people.  To  prevent,  therefore,  any  risings,  or  other 
disturbances  of  the  peace,  the  new  King  sent  writs  to  all  the  sheriffs  of 
the  realm,  giving  a  plausible  account  of  the  manner  of  his  obtaining 
the  crown,  and  withal  commanding  each  sheriff  that  the  peace  be  kept 
throughout  his  bailiwick  on  pain  and  peril  of  disinheritance,  and  loss  of 
life  and  limb — and  in  a  few  weeks  after  the  date  of  these  writs  it  was 
ordained  in  parliament  that  for  the  better  maintaining  and  keeping  of 
the  peace  in  every  county,  good  men  and  lawful,  who  were  no  main- 
tainers  of  evil,  or  barretors  in  the  country,  should  be  assigned  to  keep 
the  peace.  And  in  this  manner,  and  upon  this  occasion  was  the  elec- 
tion of  the  conservators  of  the  peace  taken  from  the  people  and  given 
to  the  King  ;  this  assignment  being  construed  to  -be  by  the  King's  per- 
mission.  But  still  they  were  only  called  conservators,  wardens  or  keep- 
ers of  the  peace,  till  the  statute  34  Edw.  III.  c.  1,  gave  them  the  pow- 
er of  trying  felonies ;  when  they  acquired  the  more  honorable  appella- 
tion of  justices.1  The  statute  of  36  Elizabeth,  it  seems,  however,  is 
the  first  that  names  them  justices  of  the  peace,2  which  was  upwards  of 
two  hundred  years  after  acquiring  the  appellation  of  justices. 

The  power,  office  and  duty  of  a  justice  of  the  peace  depends  on  his 
commission,  and  on  the  several  statutes  which  have  created  objects  of 
his  jurisdiction.  His  commission  first  empowers  him  to  conserve  the 
peace ;  and  thereby  gives  him  all  the  power  of  the  ancient  conserva- 
tors at  the  common  law,  in  suppressing  riots  and  affrays,  in  taking  se- 
curities for  the  peace,  and  in  apprehending  and  committing  felons  and 
other  criminals.  And  as  to  the  powers  given  to  one,  two  or  more  jus- 
tices by  the  several  statutes,  which  from  time  to  time  have  heaped  upon 
them  such  an  infinite  variety  of  business,  that  few  care  to  undertake, 
and  fewer  understand  the  office  ;  they  are  such,  and  of  so  great  im 
portance  to  the  public,  that  the  country  is  greatly  obliged  to  any  wor- 

(1)  Bl.  Com.  360.  (2)  Dalt.  Just.  6. 


CHAP.  1.]  or  THE  ELECTION  OF  JUSTICES.        .  19 

thy  magistrate,  that,  without  sinister  views  of  his  own,  will  engage  in 
this  troublesome  service,  and  therefore,  if  a  well-meaning  justice  makes 
any  undesigned  slip  in  his  practice,  great  lenity  and  indulgence  are 
shown  to  him  in  the  courts  of  law ;  and  there  are  many  statutes  made 
to  protect  him  in  the  upright  discharge  of  his  office.  But  on  the  other 
hand,  any  malicious  or  tyrannical  abuse  of  their  office  is  usually  severely 
punished.1 

If  magistrates  were  always  held  liable  for  every  trifling  mistake  they 
commit  in  the  performance  of  their  various  official  duties,  few  persons 
would  be  found  willing  to  accept  an  office  of  so  little  profit  and  attend- 
ed with  such  great  risk.  Courts,  therefore,  from  necessity,  are  bound 
to  view  their  acts  with  reasonable  indulgence,  and  if  they  are  govern- 
ed by  good  faith,  and  act  within  their  jurisdiction,  they  will  not  be  held 
liable  for  errors  of  judgment  in  matters  of  mere  form.2 

The  office  of  justice  of  the  peace  was  introduced  by  our  forefathers 
at  their  migration  ;  and  in  all  particulars  then  applicable,  or  which  have 
since  become  applicable,  to  this  jurisdiction,  may  be  considered  as  pos- 
sessing here  the  general  character  and  functions  allowed  to  it  in  Eng- 
land, by  force  of  the  statutes  which  had  there  created  and  regulated 
this  ancient  and  important  office..8  In  this  State  as  well  as  the  States 
of  the  Union  generally,  the  statutes  since  enacted,  have  enumerated 
the  powers  and  duties  of  justices  of  the  peace,  both  in  civil  and  crimi- 
nal matters ;  so  that  now  there  is  little,  if  any  occasion  to  recur  to  the 
ancient  English  statutes  for  the  powers  of  this  office  ;  and  perhaps,  the 
enumeration  itself  will  preclude  to  a  certain  extent  such  recurrence. 
The  office,  therefore,  exists  in  this  country,  principally,  if  not  entirely 
according  to  our  statutes. 


II.    OF  THE  ELECTION  OF  JUSTICES. 

By  Art.  V.  $  27  of  the  constitution  of  this  State  it  is  declared  that 
"  There  shall  be  elected  in  each  county  in  this  State,  in  such  districts  as 
the  General  Assembly  may  direct,  by  the  qualified  electors  thereof, 
a  competent  number  of  justices  of  the  peace,  who  shall  hold  their 
offices  for  the  term  of  four  years,  and  until  their  successors  shall  have 
been  elected  and  qualified,  and  who  shall  perform  such  duties,  receive 
such  compensation,  and  exercise  such  jurisdiction  as  may  be  prescribed 
by  law." 

(1)  1  Bl.  Com.  364.  (2)  Breese    R.  145.  (3)  1  Mass.  R.  489. 


20  OF    THE    ELECTION    OF   JUSTICES.  [PART  1, 

1.    In   Counties  not  adopting  Township   Organization. 

By  section  16  of  the  act  entitled  "  An  act  establishing  county  courts 
and  providing  for  the  election  of  justices  of  the  peace  and  constables, 
and  for  other  purposes,"  Approved  Feb.  12th,  1849,  and  in  force  April 
13th,  1849,  it  is  enacted  that  "  On  Tuesday  after  the  first  Monday  in 
November  in  the  year  eighteen  hundred  and  forty-nine,  and  on  the 
Tuesday  after  the  first  Monday  in  November  quadrennially,  forever 
thereafter,  there  shall  be  elected  in  each  of  the  several  counties  of 
this  State  now  organized,  or  that  may  hereafter  from  time  to  time  be 
organized,  and  in'  the  districts  now  established  in  pursuance  of  the 
laws  of  this  State,  or  that  may  hereafter  be  established  and  by  the 
qualified  electors  thereof,  the  number  of  justices  of  the  peace  and  con- 
stables to  which  such  counties  are  now  entitled  by  law,  or  to  which 
they  may  hereafter  from  time  time  be  entitled ;  and  said  justices  of 
the  peace  and  constables  so  elected  shall  exercise  the  same  powers 
and  jurisdiction,  and  perform  the  duties,  and  be  under  the  liabilities, 
in  all  respects  whatever,  of  the  justices  of  the  peace  and  constables 
now  in  office,  and  be  entitled  to  the  same  fees  and  emoluments,  or 
such  as  may  be  provided  by  law." 

By  Chap.  LIX.  of  the  Kevised  Statutes  title,  "  JUSTICES  OF  THE 
PEACE  AND  CONSTABLES,"  pp.  313,  314  which  is  understood  as  being 
referred  to  by  the  foregoing  section ;  it  is  provided  as  follows : 

"SEC.  2.  Two  justices  of  the  peace  and  two  constables  shall  be 
elected  in  each  election  precinct  in  each  county,  except  that  precinct 
in  which  the  county  seat  is  located,  in  which  there  shall  be  three  jus- 
tices of  the  peace  and  three  constables  elected." 

"  SEC.  5.  The  County  Commissioners'  Court1  of  any  county  may, 
when  they  deem  it  necessary,  cause  an  election  to  be  held  in  the  pre- 
cinct in  which  the  county  seat  is  located,  for  the  election  of  one  addi- 
tional justice  of  the  peace  and  two  constables,  who  shall  hold  their 
offices  until  the  next  quadrennial  election  of  justices  of  the  peace 
and  constables,  and  until  others  are  elected  and  qualified.  At  such 
quadrennial  election,  the  whole  number  of  justices  of  the  peace  and 
constables  to  which  each  precinct  is  herein  entitled,  shall  be  elected." 

By  the  foregoing  sections,  it  will  be  seen  that  each  precinct,  or  elec- 
tion district,  in  counties  not  adopting  Township  organization,  is  entitled  to 
two  justices  and  two  constables,  except  that  in  which  the  county  seat  is 
located,  which  may  have  four  justices  and  five  constables. 

(1)  Now  County  Court. 


ClIAP.   1.]  OF    THE    ELECTION    OF    JUSTICES.  21 

Vacancy. — Whenever  any  vacancy  happens  in.  the  office  of  the  jus- 
tice of  the  peace,  it  is  made  the  duty  of  the  clerk  of  the  County  Court 
to  issue  his  orders  to  the  Judges  of  Election  in  the  precinct  in  which 
the  vacancy  shall  happen,  requiring  them  on  a  certain  day  therein  nam- 
ed, not  less  than  twenty  days  from  the  issuing  of  such  order,  to  hold  an 
election,  to  fill  such  vacancy,  which  order  is  to  be  immediately  delivered 
by  said  clerk  to  the  sheriff  of  the  county,  and  by  him,  within  five  days 
thereafter,  delivered  to  the  Judges  of  election  to  whom  directed,  when 
the  Judges  of  election,  shall,  in  pursuance  of  said  order,  hold  said  elec- 
tion.1 

2.  In   Counties  adopting   Township   Organization. 

By  the  act  to  provide  for  Township  organization,  approved  Februa- 
ry 17th,  1851,  Art.  3,  Sec.  2,  it  is  provided  that  two  justices  of  the  peace 
and  two  constables  shall  be  elected  in  each  town  on  the  first  Tuesday  in 
April,  at  the  time  of  choosing  town  officers,  once  in  four  years,  only, 
except  to  fill  vacancies.  By  an  act  amendatory  to  the  foregoing  act,  ap- 
proved February  27th,  1854,  Sec.  15,  it  is  enacted  "  That  in  all  towns 
having  a  population  of  more  than  two  thousand  inhabitants,  it  shall 
be  lawful  for  the  qualified  voters  thereof  to  elect  one  justice  of  the 
peace  and  one  constable  for  each  and  every  thousand  of  its  inhabit- 
ants, until  the  population  shall  reach  five  thousand,  after  which,  the 
number  of  justices  of  the  peace  and  constables  shall  not  be  increased. 
Said  justices  of  the  peace  and  constables  shall  be  elected  in  the  same 
manner,  and  shall  hold  their  offices  for  the  same  term  of  time  as  other 
justices  of  the  peace  and  constables.  Said  justices  of  the  peace  shall 
be  commissioned  by  the  Governor,  and  shall  have  the  same  jurisdic- 
tion, power  and  authority,  and  be  subject  to  the  same  liabilities,  and 
shall  execute  bond  and  be  sworn  in  the  same  manner  as  other  justices 
of  the  peace." 

It  seems  to  be  rather  an  unwise  provision  in  having  the  term  of  office 
of  justices  and  constables  all  expire  at  the  same  time,  for  as  it  now  is,  it 
not  unfrequently  happens  that  confusion  arises,  in  determining  who 
shall  hold  over,  or  who  is  the  successor  of  a  former  incumbent.  For  in- 
stance, in  a  town  or  precinct  having  two  justices  of  the  peace,  when 
their  term  of  office  expires,  two  different  persons  are  elected  to  succeed 
them,  one  of  which  fails  to  qualify ;  the  question  arises,  which  of  the 
former  justices  holds  over.  Under  this  state  of  things,  probably  neith- 
er can  claim  the  right  of  holding  over.  If,  however,  a  town  should 

(1)  See  act  establishing  County  Courts,  &c.,  1849,  sections  6  and  19. 


22  QUALIFICATION.  [PART  1, 

neglect  to  choose  the  number  of  justices  or  constables,  that  it  would  be 
entitled  to,  but  should  elect  a  less  number  than  allowed  by  law,  it  has 
been  decided  that  this  would  oust  all  those  of  the  preceding  term ;  neith- 
er of  the  former  incumbents  could  hold  over  on  the  pretense  that  no 
person  is  chosen  in  his  place,  notwithstanding  there  may  have  been  a 
full  number  for  the  preceding  term.1 


III.    OF  QUALIFICATIONS. 

By  the  Kevised  Statutes  chap.  LIX.  sec.  9,  it  is  enacted,  "  That  jus- 
tices of  the  peace  and  constables  shall,  before  entering  upon  the  duties  of 
their  respective  offices,  be  sworn,  faithfully  to  perform  the  duties  of 
their  respective  offices  according  to  law,  and  to  the  best  of  their  under- 
standing." 

"  SEC.  10.  Every  justice  of  the  peace,  before  entering  upon  the 
duties  of  his  office,  shall  execute  and  deliver  to  the  clerk  of  the  county 
commissioners'  court2  of  his  county,  and  within  twenty  days  after  his 
said  election,  a  bond  to  be  approved  by  said  clerk,  with  one  or  more 
good  and  sufficient  securities,  in  the  sum  of  not  less  than  five  hundred 
nor  more  than  one  thousand  dollars :  conditioned  that  he  will  justly 
and  fairly  account  for  and  pay  over  all  moneys  that  may  come  to  his 
hands  under  any  judgment  or  other  wise,  by  virtue  of  his  said  office : 
and  that  he  will  well  and  'truly  perform  all  and  every  act  and  duty 
enjoined  on  him  by  the  laws  of  this  State,  to  the  best  of  his  skill  and 
abilities.  Said  bond  shall  be  made  payable  to  the  county  commission- 
ers of  the  county  in  which  such  justice  of  the  peace  shall  be  elected, 
and  their  successors  in  office,  for  the  use  of  the  people  of  the  State  of 
Illinois,  and  shall  be  held  for  the  security  and  benefit  of  all  suitors 
and  others,  who  may  be  injured  or  aggrieved  by  the  official  acts  or 
misconduct  of  such  justice  of  the  peace." 

There  may  be  some  doubt  as  to  whom  the  bond  of  a  justice  of  the 
peace  should  be  made  payable,  under  our  later  statutes.  In  counties 
adopting  township  organization,  it  should,  doubtless,  be  made  payable 
to  the  Board  of  Supervisors,  and  in  counties  not  adopting  town  organi- 
zation, it  is,  perhaps,  proper  that  it  should  be  made  payable  to  the 
County  Court  of  the  proper  County. 

(1)  17  Wend.  81.  (2)  Clerk  of  the  County  Court. 


I 

ClIAP.  1.]  QUALIFICATION.  23 

Form  of  Oath  of  Office  of  Justice  of  the  Peace. 

STATE  OF  ILLINOIS,  )    c 
Lake  COUNTY,  )  ss' 

I, ,  being  elected  a  Justice  of 

the  Peace,  in  and  for  the  County  of  Lake,  in  the  State  of  Illinois,  do 
solemnly  swear,  (or  affirm,}  that  I  will  support  the  Constitution  of  the 
United  States,  and  of  the  State  of  Illinois,  and  that  I  will  faithfully 
perform  the  duties  of  my  said  office  according  to  law,  to  the  best  of  my 
understanding. 

I  do  solemnly  swear,  (or  affirm,  as  the  case  may  be,}  that  I  have 
not  fought  a  duel,  the  probable  issue  of  which  might  have  been  the  death 
of  either  party,  nor  been  a  second  to  either  party,  nor  in  any  manner 
aided  or  assisted  in  such  duel,  nor  been  knowingly  the  bearer  of  such 
challenge  or  acceptance,  since  the  adoption  of  the  constitution,  and  that 
I  will  not  be  so  engaged  or  concerned,  directly  or  indirectly,  in  or  about 
any  such  duel,  during  my  continuance  in  office.  So  help  me  God. 


Subscribed  and  Sworn  to,  before  me, 


A.  B. 


this day  of A.  D.  18—. 

J.  C.  BlDDLECOME, 

Clerk  of  Co.  Court  of  Lake  County. 

It  is  made  the  duty  of  the  clerk  of  the  county  court  to  endorse  the  cer- 
tificate of  this  oath  upon  the  commission  of  the  justice,  upon  receiving 
or  delivering  out  the  same. 

Form  of  Official  Bond  of  Justice  of  the  Peace. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  we, as  principal, 

and and as  sureties,  are  held  and  firmly  bound  unto 

the   Board  of  Supervisors,   (or as  the  case  may  be,}  of  the 

County  of ,  and  their  successors  in  office,  for  the  use   of  the 

people  of  the  State  of  Illinois,  in  the  sum  of dollars,  (not  less 

than  Jive  hundred  nor  more  than  one  thousand  dollars,}  to  be  paid  to 

the  said  Board  of  Supervisors,  (or as  the  case  may  be,}  and 

their  successors  in  office,  for  the  use  aforesaid ;  for  the  payment  of  which, 
well  and  truly  to  be  made,  we  bind  ourselves,  our  executors  and  ad- 
ministrators, and  each  of  them  firmly  by  these  presents.  Sealed  with 
our  seals,  and  dated  this day  of A.  D.  18 — . 

WHEREAS,  at  an  election  lately  held  in  the  town  of (or  pre- 
cinct of )  in  the  county  aforesaid,  the  above  bounden 

was  duly  elected   a  Justice  of  the  Peace,  in  and  for  said  county. 


24  RESIGNATION.  [PART  1, 

^ 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 

above  bounden shall  justly  and  fairly  account  for  and  pay  over 

all  moneys  that  may  come  to  his  hands,  under  any  judgment  or  other- 
wise, by  virtue  of  his  said  office  ;  and  shall  well  and  truly  perform  all 
and  every  act  and  duty  enjoined  on  him  by  the  laws  of  the  State  of 
Illinois,  to  the  best  of  his  skill  and  abilities,  then  the  above  obligation 
to  be  void,  otherwise  to  remain  in  full  force  and  effect. 

{Seal.} 
(Seal.) 
(Seal.) 

Great  care  should  be  exercised  by  justices  elect  in  steps  for  qualifica- 
tion, in  pursuing  the  law  strictly,  that  questions  in  the  future,  may  be 
avoided,  and  particularly,  in  relation  to  the  bond ;  in  the  case  of  The 
People  v.  PerceUs,1  where  a  justice  elect,  had  within  twenty  days  after 
his  election,  filed  his  official  bond  in  compliance  with  the  statute  in 
such  cases  made  and  provided,  except  that  the  condition  thereof,  omit- 
ted to  recite  the  following  requirement :  "  and  that  he  will  well  and 
truly  perform  all  and  every  act  and  duty  enjoined  on  him  by  the  laws 
of  this  State,  to  the  best  of  his  skill  and  abilities;"  and  after  the  expi- 
ration of  twenty  days,  as  aforesaid,  he  filed  a  new  bond  with  other  se- 
curities, containing  the  provisions  omitted  in  the  first;  it  was  held  that 
the  first  bond  was  insufficient,  that  the  second  was  not  filed  within  the 
time  required  by  the  statute,  and  that  therefore,  the  office  became  vacant. 

Justices  of  the  peace,  when  qualified  according  to  law,  have  jurisdic- 
tion throughout  their  county.2 

Justices  of  the  peace  who  have  given  bond  and  received  commissions 
according  to  law,  are  authorized  and  empowered,  and  it  is  made  their  duty 
to  receive  money  on  all  notes  and  demands  which  may  be  placed  in  their 
hands  for  suit  or  collection,  and  upon  all  judgments  rendered  by  them 
prior  to  the  issuing  execution  thereon.8 


IV.    OF   RESIGNATIONS. 

Resignations  of  the  office  of  justice  of  the  peace  must   be  made  to 
the  clerk  of  the  county  court  of  the  proper  county,  who  is  required  to 

(1)  3  Gilm.  59.  (2)  Rev.  Stat.  314,  sec.  7. 

(3)  Rev.  Stat.  316.  sec.  19. 


CHAP.  1.]  RESIGNATION.  25 

immediately  enter  the  date  of  every  such  resignation  in  a  book  provided 
for  that  purpose,  -which  book,  or  a  certified  copy  of  entries  therein, 
will  be  received  as  evidence  in  all  courts  within  the  State.1  When 
any  justice  of  the  peace  resigns  his  office,  or  removes  from  the  county, 
or  from  the  township  or  precinct  in  which  he  was  elected,  it  is  his  duty 
to  deliver  over  his  docket  and  papers  relating  to  the  business  transacted 
before  him,  to  the  nearest  justice  of  the  peace  in  his  county,  and  to 
return  to  the  office  of  the  clerk  of  the  county  court  all  copies  of  the 
statutes  which  he  may  have  received  from  that  office ;  and  in  case  of 
the  death  of  any  justice  of  the  peace,  it  is  the  duty  of  the  person  hav- 
ing possession,  of  such  docket,  papers  and  statutes,  to  deliver  them  over 
as  aforesaid.2 

A  person  who  has  been  elected  a  justice  of  the  peace  for  a  precinct, 
if  he  is  subsequently  elected  to  the  same  office  for  a  township,  and  ac- 
cepts the  latter,  it  is  an  implied  resignation  of  the  first  office  which  be- 
comes vacated.8 

(1)  Rev.'Stat.  315,  sec.  15.  (2)    Rev.  Stat.  331,  sec.  112.  (3)  15  111.  375. 


26  JUSTICE'S  JURISDICTION  GENERALLY.  [PART  1, 


CHAPTER   II. 

OF    THE   JURISDICTION    OF   JUSTICES    OF    THE    PEACE    IN 
CIVIL  CASES. 

I.  OF  WHAT  THE  JUSTICE  HAS  JURISDICTION  TO  HEAR  AND  DETER- 
MINE. 
II.  OF  JURISDICTION  OFT?HE  SUBJECT  MATTER. 

III.  OF  JURISDICTION  OF  THE  PERSON. 

IV.  OF  PROCEEDINGS  WITHOUT  JURISDICTION. 

I.    OF  WHAT  THE  JUSTICE  HAS  JURISDICTION  TO  HEAR  AND  DETERMINE. 

A  justice's  court  is  one  of  limited  jurisdiction.  The  Statute  is  the 
charter  of  its  authority ;  and  whenever  it  assumes  jurisdiction  in  a  case 
not  conferred  by  the  statute,  its  acts  are  null  and  void.1  The  jurisdic- 
tion of  the  justice  is  conferred  by  statute,  and  in  its  exercise  he  must 
proceed  in  strict  conformity  with  the  manner  prescribed.2 

By  Revised  Statutes,  chap.  LIX.,  title,  "JUSTICES  OF  THE  PEACE  AND 
CONSTABLES,"  sec.  17,  it  is  enacted  that,  "Justices  of  the  peace  shall 
have  jurisdiction  in  their  respective  counties,  to  hear  and  determine  all 
complaints,  suits  and  prosecutions  of  the  following  description  : 

"1st.  In  actions  of  debt  on  bonds,  contracts,  agreements,  promisso- 
ry notes,  or  other  instruments  in  writing,  in  which  the  amount  claimed 
to  be  due,  does  not  exceed  one  hundred  dollars. 

"  2d.  In  actions  of  assumpsit  upon  any  contract  or  promise,  verbal 
or  written,  express  or  implied,  for  a  valuable  consideration  in  which  the 
amount  claimed  to  be  due  does  not  exceed  one  hundred  dollars. 

"3d.  In  suits  brought  for  goods,  wares  or  merchandise,  sold  and 
delivered ;  for  work  and  labor  done,  or  services  rendered ;  for  money 
had  and  received ;  for  money  lent ;  for  money  received  by  the  defend- 
ant, for  the  use  of  the  plaintiff;  or  for  money  paid  by  the  plaintiff,  for 
the  defendant  at  his  request ;  in  which  the  amount  claimed  to  be  due 
does  not  exceed  one  hundred  dollars. 

(I)  1  Scam.  237.  (2)  2  Scam.  469. 


CHAP.  2.]  JUSTICES  JURISDICTION  GENERALLY.  27 

"4th.  In  suits  for  money  claimed  to  be  due  upon  unsettled  ac- 
counts, in  which  the  balance  claimed  to  be  due  does  not  exceed  one 
hundred  dollars. 

"  5th.  In  suits  for  money  claimed  to  be  due  upon  settled  accounts 
between  individuals,  in  which  the  balance  ascertained  to  be  unpaid  shall 
not  exceed  one  hundred  dollars. 

"  6th.  In  all  suits  upon  contracts  or  promises  for  rent,  and  in  cases 
of  distress  for  rent,  upon  landlords'  warrants,  in  which  the  amount 
claimed  to  be  due  does  not  exceed  one  hundred  dollars. 

"  7th.  In  actions  of  debt  for  trespass,  by  cutting  timber  in  which 
the  amount  claimed  does  not  exceed  one  hundred  dollars. 

"  8th.  In  actions  for  money  claimed  to  be  due  for  specific  articles 
of  property  whether  claimed  to  be  due  by  bond,  note,  or  other  instru- 
ment in  writing,  or  upon  a  promise  express  or  implied,  in  which  the 
value  of  the  property  claimed  does  not  exceed  one  hundred  dollars. 

"  9th.  For  all  debts  or  demands  claimed  to  be  due  not  exceeding  one 
hundred  dollars,  in  which  the  action  of  debt  or  assumpsit  will  lie. 

"10th.  In  all  actions  in  which  an  executor  or  administrator  is 
plaintiff,  or  for  property  purchased  at  an  executor's  or  administrator's 
sale,  where  the  amount  claimed  does  not  exceed  one  hundred  dollars. 

"llth.  In  all  actions  in  which  an  executor  .or  administrator  is  de- 
fendant, where  the  amount  claimed  does  not  exceed  twenty  dollars. 

"  12th.  In  all  actions  of  trespass  on  personal  property,  and  of  tro- 
ver and  conversion,  in  which  the  damage  claimed  does  not  exceed  one 
hundred  dollars. 

"  13th.  [This  paragraph  of  the  section  gives  jurisdiction  in  cases  of 
assault  and  battery  and  affrays,  which  will  be  treated  upon  in  another 
part  of  this  work.] 

"  14th.  In  all  actions  against  sheriffs,  coroners  and  constables  for 
malfeasance,  misfeasance  or  nonfeasance  in  office,  wherein  the  amount 
claimed  does  not  exceed  one  hundred  dollars. 

"  The  provisions  of  this  section  shall  apply  as  well  to  proceedings 
commenced  by  attachment,  as  to  other  cases." 

"  SEC.  18.  In  all  suits  provided  for  in  the  preceding  section,  the 
jurisdiction  of  the  justice  shall  be  deemed  to  extend  to  cases  in  which 
the  original  claim,  debt,  demand  or  damages  may  have  originally  ex- 
ceeded the  sums  of  one  hundred  dollars,  and  twenty  dollars  respective- 
ly, but  which  shall  have  been  reduced  by  fair  credits  below  those  sums." 

By  a  late  act,  entitled  "  An  act  to  extend  the  jurisdiction  of  justices 
of  the  peace,"  Approved  Feb.  15,  1855,  it  is  enacted,  "That  the  ju- 


28  JUSTICES    JURISDICTION    GENERALLY.  [PART  1, 

risdiction  of  justices  of  the  peace  be  and  the  same  is  hereby  extended 
so  as  to  include  all  actions  for  trespass  upon  real  estate  where  the  sum 
claimed  does  not  exceed  one  hundred  dollars."1 

As  we  have  already  seen,2  the  courts  from  necessity  will  view  the 
acts  of  justices  of  the  peace  with  great  indulgence  ;  and  where  a  justice 
has  jurisdiction,  but  proceeds  erroneously,  he  is  not  a  trespasser ;  but 
where  he  has  not  jurisdiction,  it  is  otherwise,  and  he  will  be  held  a 
trespasser.8 

A  suit  before  a  person  assuming  to  act  as  a  justice  of  the  peace,  will 
not  be  dismissed  on  motion  for  the  reason  that  he  is  not  a  legal  justice 
of  the  peace.  It  is  sufficient  that  he  assumes  to  act  in  such  capacity ; 
his  right  to  act  cannot  be  collaterally  examined.4 

In  suits  where  the  original  claim,  debt  or  demand  exceeds  one  hun- 
dred dollars,  and  is  to  be  reduced  by  credits,  the  credit  must  be  bona 
fide  and  not  given  merely  to  gain  jurisdiction.5  The  court  will  pre- 
sume such  credit  to  be  fair,  until  the  contrary  is  shown.6 

Where  a  suit  was  commenced  before  a  justice  of  the  peace  upon  a 
note  for  one  hundred  dollars,  payable  in  twenty  days,  judgment  was 
rendered  for  the  plaintiff  for  that  amount,  and  the  defendant  appealed 
to  the  Circuit  Court,  and  there  moved  to  dismiss  the  cause  for  want  of 
jurisdiction  in  the  justice.  Held,  that  the  justice  had  jurisdiction,  as 
the  face  of  the  note  did  not  exceed  one  hundred  dollars,  and  the  plain- 
tiff did  not  claim  interest.7 

If  a  controversy  exists  as  to  the  amount  of  a  set-off,  a  party  is  not 
bound  to  give  credit  before  the  commencement  of  a  suit  for  the  exact 
amount  to  which  the  trial  may  show  the  party  entitled.8  Where  actions 
are  brought  before  a  justice  of  the  peace  on  two  notes,  returnable  at  the 
same  time,  which  if  consolidated  would  exceed  one  hundred  dollars,  a 
judgment  on  the  first,  is  not  a  bar  to  a  recovery  on  the  second.  Each 
note  constitutes  a  separate  demand.9 

The  question  of  jurisdiction  with  a  justice  of  the  peace,  does  not  de- 
pend upon  the  amount  of  the  claim  filed  ;  but  the  real  amount  due,  as- 
certained from  the  evidence,  furnishes  the  test.10 

A  justice  of  the  peace  has  jurisdiction  of  a  set-off  exceeding  one  hun- 
dred dollars  where  the  balance  claimed  by  the  defendant  does  not  exceed 
that  sum,  and  it  appears  that  if  the  balance  exceeds  one  hundred  dollars, 
the  justice  must  do  one  of  two  things ;  either  allow  and  set  off  so  much 

(l)SeeSess.  Laws,  1855,  p.139.  (2)  Ante,  p.  19.          (3)  Brcese  145.         (4)  2  Gil.  129. 

(5)1  Scam.  168.     (6)  Id.  575.     (7)  2  Gil.  389.     (8)11111.564.     (9)  Ibid.      (10)14111.393. 


CHAP.  2.]         JURISDICTION  OP  THE  SUBJECT  MATTER.  29 

of  the  defendant's  claim  as  will  satisfy  the  plaintiff's  claim  and  give 
judgment  for  the  defendant,  for  costs,  or  dismiss  the  suit  altogether.1 

A  justice  of  the  peace  has  jurisdiction  in  an  action  of  trespass  for 
injury  to  growing  corn,  if  the  damages  claimed  do  not  exceed  one  hun- 
dred dollars  f  and  has  jurisdiction  in  an  action  against  a  constable,  for 
taking  property  not  subject  to  levy ;  and  against  a  constable  and  his 
sureties  for  the  recovery  of  single  damages  for  his  malfeasance  in  taking 
such  property.3  Single  damages,  likewise,  can  only  be  recovered  be- 
fore a  justice  of  the  peace  in  an  action  against  the  constable  for  taking 
property  exempt  from  levy ;  but  a  suit  should  not  be  dismissed  because 
the  plaintiff  has  claimed  for  treble  damages,  by  way  of  penalty,  given 
by  the  statute,  but  the  cause  should  be  entertained  and  judgment  given 
according  to  the  evidence.4 

In  order  to  render  the  judicial  proceedings  or  judgment  of  any  in- 
ferior court  valid,  it  is  necessary  that  the  court  should  have  jurisdiction 
of  the  subject  matter,  and  of  the  person.5 


II.    OP  JURISDICTION,  OP  THE  SUBJECT  MATTER. 

It  is  a  clear  and  salutary  principle,  that  inferior  jurisdictions  not 
proceeding  according  to  the  course  of  the  common  law,  are  confined 
strictly  to  the  authority  given  them.  They  can  take  nothing  by  impli- 
cation, but  must  show  the  power  expressly  given  them  in  every  instance. 
The  sound  rule  of  construction  in  respect  to  the  courts  of  justices  of 
the  peace,  is,  to  be  liberal  in  reviewing  their  proceedings  as  far  as  re- 
spects regularity  and  form,  and  strict  in  holding  them  to  the  exact  lim- 
its of  jurisdiction  prescribed  by  the  statutes.6  Where  the  justice  has  a 
general  jurisdiction  of  the  subject  matter,  and  has  obtained  jurisdiction 
of  the  persons,  whatever  errors  he  may  commit  in  the  subsequent  pro- 
ceedings in  the  suit,  will  not  render  them  void,  but  voidable  only. 

If  a  court  has  no  jurisdiction  of  the  subject  matter  of  the  suit,  con- 
sent of  the  parties  cannot  confer  it,7  although  it  may  take  away  error. 
The  law  is  well  settled  that  in  order  to  justify  a  court  not  of  record 
in  taking  cognizance  of  a  cause,  it  must  have  jurisdiction  of  the  subject 
matter  as  well  as  of  the  person  of  the  defendant.8 

(1)  3  Scam.  298.  (2)  14  111.  257.          (3)  15  111.  39.  (4)  Ibid.        (5)  5  Wend.  170. 

(6)  1  Johns,  cas.  20;  3  Scam.  194.  (7)  Breese  32:  12  111.  122.  (8)  1  Scam.  658. 


30  JURISDICTION   OF   THE   PERSON.  [PART  1, 

III.       OF  JURISDICTION  OF  THE  PERSON. 

The  individual  proceeded  against,  must  in  general,  be  notified  in  some 
legal  form,  in  order  to  give  the  court  or  justice  jurisdiction  over  him, 
for  it  is  an  indispensable  requisite  that  before  the  rights  of  a  party  can 
be  determined,  either  civilly  or  criminally,  he  shall  have  notice  of  the 
proceedings  to  be  had,  that  he  may  have  an  opportunity  of  defending 
himself.1 

It  is  essential  to  the  exercise  of  all  jurisdictions  rendering  judg- 
ments or  decrees,  affecting  the  person  or  property  of  the  individual, 
where  the  proceeding  is  by  summons  directed  to  the  defendant,  that 
they  should  have  indisputable  evidence  before  them  that  the  party  to  be 
affected  by  their  judgment  or  decree  is  regularly  before  them,  or,  in 
other  words,  has  been  regularly  summoned  otherwise  their  proceed- 
ings are  coram  non  judice,  consequently,  irregular  and  void.  This 
appearance  must  be  either  actual  or  constructive. 

The  plaintiff  in  a  case  where  the  defendant  does  not  appear,  proceeds 
at  his  peril ;  he  is  bound  to  see  that  all  the  antecedent  proceedings  are 
regular,  and  if  they  are  not,  he  necessarily  consents  to  meet  the  conse- 
quences of  such  irregularities.2  If  the  defendant  appears,  however, 
and  proceeds  in  the  cause  without  objection  to  the  process  or  service 
thereof,  this  will  cure  not  only  all  defects  and  informalities  therein,  but 
also  the  want  of  process.3 

Objections  to  the  proceedings  of  the  justice  on  the  ground  that  the 
defendant  has  had  no  notice,  or  but  an  insufficient  notice  of  such  pro- 
ceedings, are  in  the  nature  of  a  plea  in  abatement  to  the  jurisdiction  of 
the  justice,  and  are  required  to  be  made  at  the  first  moment  at  which 
the  defendant  is  able  to  make  them  ;4  any  objections  to  the  process 
should  always  be  made  in  the  first  instance ;  it  will  be  too  late  after 
pleading  and  going  to  trial.6 

A  justice  can  render  judgment  against  a  defendant  only  where  pro- 
cess is  personally  served  on  him,  or  he  appears  in  person  before  the  jus- 
tice and  waives  process. 

A  defendant  cannot  authorize  a  justice  to  render  judgment  against 
him  by  sending  a  letter  to  such  justice  requesting  him  to  enter  judg- 
ment against  the  defendant  in  favor  of  the  plaintiff,  for  an  amount  named 
in  the  letter,  although  the  defendant  expressly  state  that  he  waived 

(1)  4  Bl.  Com.  282;  1  Scam.  517.  (2)  1  Scam.  174.  (3)  Id.  267. 

(4)  4  Scam.  176.  (5)  2  Caine  134. 


CHAP.  2.]  PROCEEDING   WITHOUT  JURISDICTION.  31 

the  service  of  the  process  and  authorized  the  judgment.  A  judgment 
obtained  under  such  circumstances  is  not  only  voidable,  but  totally 
void,  and  no  one  can  acquire  any  benefit  or  right  under  it.1 

But  notice  to  the  defendant  need  not  in  all  cases  be  personal;  the 
legislature  may  prescribe  what  notice  shall  be  sufficient.  Thus  in  suits 
by  attachment  against  the  property  of  the  defendant,  personal  service 
is  in  certain  cases  dispensed  with,  and  the  justice  may  entertain  juris- 
diction of  the  cause,  and  render  judgment  for  certain,  purposes. 


IV.    OF  PROCEEDING  WITHOUT  JURISDICTION. 

It  is  a  general  and  well  settled  rule,  that  where  a  court  of  special 
and  limited  jurisdiction,  like  that  of  a  justice  of  the  peace,  has  neither 
jurisdiction  of  the  subject  matter  of  the  suit,  nor  of  the  person  of  the 
defendant,  everything  done  therein  is  absolutely  void,  and  all  are  tres- 
passers who  are  concerned  in  the  proceedings.2  But  this  rule,  so  far 
as  respects  the  officer  serving  the  process,  is  somewhat  modified.8 

A  justice  may  also  be  liable  as  a  trespasser,  where  there  is  not  a  total 
want  of  jurisdiction,  but  where  some  proceeding  or  proof  is  wanting, 
which  is  necessary,  in  order  to  give  him  authority  to  act  in  the  particular 
case ;  as,  if  he  issue  an  attachment  without  any  proof  of  absconding  or 
concealment,  as  provided  by  the  statute  in  such  cases,  which  being  exe- 
cuted, not  only  the  justice,  but  also  the  plaintiff,  would  be  liable  as  tres- 
passers ;  but  in  such  case  the  constable  would  be  excused,  the  process 
being  regular  upon  its  face.4 

In  justices'  court,  no  formal  plea  to  the  jurisdiction  of  the  court  is 
necessary.  The  question  may  be  raised,  and  objection  stated,  at  any 
stage  of  the  proceedings ;  and  the  justice,  upon  becoming  satisfied  that 
he  has  not  jurisdiction,  should  at  once  dismiss  the  cause. 

(1)2  Scam.  468.  (2)  Breese  144 ;  12  Johns.  265 ;  16  Id.  152 ;  16  Id.  145. 

(3)  5  Wend.  170 ;  6  Id.  367.  (4)  11  Johns.  176 ;  3  Cowen  206. 


32  ACTIONS   BEFORE   JUSTICES    OF   THE   PEACE.  [PART.  1, 


CHAPTER   III. 

OF  THE  DIFFERENT  FORMS  OF  ACTIONS. 

I.  WHAT  ACTIONS  MAY  BE  BROUGHT  BEFORE  JUSTICES  OF  THE  PEACE. 
II.  OF  THE  ACTION  OF  DEBT. 

III.  OF  THE  ACTION  OF  COVENANT. 

IV.  OF  THE  ACTION  OF  ASSUMPSIT. 

V.  OF   THE  AC  TION  OF  TRESPASS. 

1.  Of  this  Action  Generally.  I 

2.  Injuries  to  Personal  Property. 

3.  Injuries  to  Seal  Property. 

VI.  OF  THE  ACTION  OF  TROVER. 

I.    WHAT  ACTIONS  MAY  BE  BROUGHT  BEFORE  JUSTICES  OF  THE  PEACE. 

Actions  that  may  be  brought  before  justices  of  the  peace,  which  will 
be  here  noticed,  are  of  two  kinds,  viz. :  those  founded  on  contracts,  ex- 
press or  implied ;  and  those  founded  on  torts,  or  wrongs. 

Those  founded  on  contract,  are  Debt,  Covenant  and  Assumpsit ; 
those  on  torts,  or  wrongs,  are  Trespass  and  Trover. 

While  the  principles  of  law,  by  which  these  several  actions  are  dis- 
tinguished, are  of  great  importance  to  the  lawyer,  and  are  more  closely 
regarded  in  courts  of  record,  they  are,  under  our  statute,  at  least,  of 
but  little  practical  use  to  a  justice  of  the  peace.  The  cause  of  action 
should,  in  general,  be  stated  on  the  docket,  by  either  copying  the  bill  of 
particulars,  note,  or  contract  filed  by  the  plaintiff,  by  briefly  noting 
its  contents,  or  by  stating  in  substance  the  nature  of  the  plaintiff's 
claim ;  yet  it  is  not  always  absolutely  necessary,  and  in  general 
it  may  be  more  safe  not  to  designate  the  name  of  the  action.  It  will 
only  be  necessary,  therefore,  to  define  in  general  terms,  the  different 
actions. 


CHAP.  3.]       ACTION  or  DEBT  —  ACTION  OF  COVENANT.  33 

II.    OF  THE  ACTION  OF  DEBT. 

This  action  is  so  called  because  it  is  in  legal  consideration  for  the  re- 
covery of  a  debt.1  Formerly,  in  this  action,  the  plaintiff  was  bound 
to  prove  the  whole  debt  he  claimed,  or  recover  nothing  at  all.  The 
debt,  being  one  single  cause  of  action,  fixed  and  determined,  and, 
therefore,  if  the  proof  varied  from  the  claim,  it  could  not  be  looked 
upon  as  the  same  contract  whereof  the  performance  was  sued  for.  But 
this  is  no  longer  the  case,  for  it  is  now  completely  settled,  that  the 
plaintiff  in  an  action  of  debt  may  prove  and  recover  less  than  the  sum 
demanded  by  the  writ.2 

It  is  not  advisable  to  bring  this  action  except  in  cases  where  no  other 
action  will  lie.  A  greater  degree  of  nicety  is  necessary  in  prosecuting 
it,  than  in  covenant  or  assumpsit,  which  will  lie  in  a  great  variety  of 
cases  upon  contract  where  debt  may  also  be  brought.  The  cases  in 
which  debt  is  the  sole  remedy,  may  probably  be  reduced  to  the  following : 
1.  Debt  on  &  penal  or  single  bond.  2.  On  judgments  in  courts  of 
record,  and  likewise  in  justices'  courts.8  3.  For  various  penalties 
imposed  by  statute. 

As  a  general  rule,  however,  debt  will  lie  upon  any  contract,  whether 
under  seal,  written,  verbal,  express  or  implied,  where  the  demand  is  for 
a  sum  of  money  certain,  or  a  sum  that  is  capable  of  being  readily 
reduced  to  a  certainty  ;  as,  for  goods  sold,  money  lent,  paid,  had  and 
received,  and  upon  a  promissory  note,  bond,  or  other  contract,  for  the 
payment  of  money. 


,  III.    OF  THE  ACTION  OF  COVENANT. 

This  action  lies  to  recover  damages  for  the  breach  of  a  contract  or 
agreement  under  seal,  and  it  cannot  be  maintained  except  upon  a  sealed 
instrument.  Covenant  is  the  only  remedy  for  the  non-performance  of  a 
contract  or  agreement  under  seal,  where  the  damages  are  unliquidated, 
or  cannot  be  ascertained  from  the  instrument  itself ;  for  in  such  case  debt 
will  not  lie,  and  assumpsit  will  not  ordinarily  He  on  a  sealed  instrument. 
Covenant  is  the  usual  remedy  on  all  contracts  or  agreements  under  seal. 

It  is  not  essential  that  the  word  covenant  should  be  in  the  instrument 
in  order  to  render  the  defendant  liable  in  covenant ;  words  to  that  effect 
will  be  deemed  sufficient. 

(1)  1  Chit.  pi.  123.  (2)  3  Bl.  Com.  154  n;  2  Chitty  PI.  285,  note  o;  11  East  62. 

(3)  16  Johns.  233. 


34  ACTION   OP   ASSUMPSIT.  [PART  1, 

In  covenant  there  is  strictly  no  plea  which  can  be  termed  the  general 
issue,  for  non  estfactum,  (not  his  deed)  only  puts  in  issue  the  fact  of 
the  execution  of  the  deed,  and  therefore  most  matters  of  defense  under 
this  form  of  action  must  be  specially  pleaded,  or  notice  given  under  the 
plea  of  non  est  factum.1 

The  jurisdiction  of  the  justice,  in  this  action,  is  perhaps,  under  our 
statute,  somewhat  limited.  A  justice,  no  doubt,  has  jurisdiction  in  this 
form  of  action,  upon  contracts  under  seal,  for  rent,  and  perhaps  in  one 
or  two  other  instances  under  the  17th  section  of  the  justices'  act. 


IV.    OF  THE  ACTION  OF  ASSUMPSIT. 

This  action  is  more  extensively  used  than  any  other  form  of  action, 
and  under  it  will  be  founcrthe  largest  and  most  general  jurisdiction 
of  the  justice. 

It  is  so  called  from  the  word  assumpsit,  (he  undertook  or  promised,) 
which,  when  the  pleadings  in  courts  of  record  were  in  Latin,  was 
always  inserted  in  the  declaration  as  descriptive  of  the  defendant's 
undertaking.  It  may  be  defined  to  be  an  action  for  the  recovery  of 
damages  for  the  non-performance  of  a  parol  or  simple  contract ;  or, 
in  other  words,  a  contract  not  under  seal  nor  of  record,  circumstances 
which  distinguish  this  remedy  from  others,  for  the  action  of  debt  is  in 
legal  consideration  for  the  recovery  of  a  debt  eo  nomine  and  in  numero, 
and  is  most  frequently  brought  upon  a  deed ;  and  the  action  of  covenant, 
although  in  form  the  recovery  of  damages  is  sought  by  the  plaintiff, 
can  only  be  supported  upon  a  contract  under  seal.  Assumpsit  however 
is  not  sustainable,  unless  there  have  been  an  express  contract,  or  unless 
where  the  law  will  imply  a  contract.2 

A  contract  not  under  seal,  whether  it  be  in  writing  or  merely  verbal, 
is  a  parol  or  simple  contract.  Parol  or  simple  contracts  are  either 
express  or  implied.  Express  contracts  are  where  the  terms  of  the 
bargain,  agreement,  or  promise,  are  openly  uttered  and  expressed  by 
the  contracting  parties,  and  may  be  either  to  do,  or  to  forbear  to  do,  a 
particular  act,  as  to  pay  money  on  the  sale  or  exchange  of  cattle  or 
goods  ;  to  perlprm  work  ;  to  let  or  take  lands  or  houses  ;  to  warrant 
the  soundness  or  quality  of  cattle  or  goods  ;  to  indemnify  ;  to  forbear 
to  sue,  &c.8  So  promissory  notes  and  all  agreements  reduced  to 
writing  are  express  contracts.  Implied  contracts,  or  promises,  are 

(1)  1  Chit.  pi.  131  to  138.  (2)  1  Chit.  pi.  112.  (3)  1  Com.  Con.  3. 


CjIAP.  3.]  ACTION   OF   ASSUMPSIT.  35 

such  as  reason  and  justice  dictate,  and  which,  therefore,  the  law  pre- 
sumes every  man  undertakes  to  perform.  As,  if  a  person  is  employed 
by  another  to  do  any  business  for  him,  or  perform  any  work,  and 
nothing  is  agreed  upon  as  the  price  of  his  labor.  So  when  a  man 
orders  goods  of  a  tradesman,  without  any  agreement  as  to  the  price, 
the  law  implies  that  the  buyer  contracted  to  pay  to  the  seller  their  real 
value.1  So  likewise  when  money  is  lent  and  advanced,  paid,  laid  out 
and  expended,  or  had  and  received,  and  nothing  is  expressly  stipulated 
by  the  parties  as  to  the  repayment  thereof,  the  law  raises  an  implied 
promise  that  it  shall  be  repaid  on  request.2  But  in  such  cases  an  actual 
request  is  not  necessary  before  commencing  the  suit,  but  the  bringing 
of  the  suit  is  a  sufficient  request.  And  in  various  other  instances  whieh 
might  be  mentioned,  though  no  express  agreement  be  made,  a  legal 
liability  arises,  and  the  law  presumes  that  the  party  promised  to  pay  the 
debt,  or  perform  the  duty  or  service.  In  short,  assumpsit  is  a  proper 
form  of  action  to  recover  damages  for  the  non-performance  of  all  con- 
tracts or  agreements,  verbal  or  written,  express  or  implied,  not  under  seal.8 
The  declaration  in  this  action  should,  except  in  cases  of  bills  of 
exchange,  promissory  notes  and  checks,  disclose  the  consideration  upon 
which  the  contract  was  founded,  the  contract  itself,  whether  express  or 
implied,  and  the  breach  thereof;  and  the  damages  should  be  laid  suffi- 
cient to  cover  the  real  amount  ;4  and  in  all  actions  upon  contracts  not 
under  seal,  except  in  cases  above  mentioned,  it  is  incumbent  on  the 
plaintiff  under  the  general  issue  to  prove  a  consideration  for  the  alleged 
promise  of  the  defendant.  This  may  ordinarily  be  done,  however,  by 
proof  of  all  the  circumstance's  of  the  transaction.  Thus  proof  of  the 
relation  of  landlord  and  tenant,  is  sufficient  proof  of  consideration  for 
a  promise  to  manage  a  farm  in  a  husband-like  manner.  And  this 
manner  is  proved  by  evidence  of  the  prevalent  course  of  husbandry  in 
that  neighborhood.  The  same  evidence  will  also  necessarily  disclose  a 
privity  existing  between  the  defendant  and  plaintiff;  for  if  the  plaintiff 
is  a  stranger  to  the  consideration,  he  cannot  recover ;  and  in  all  these 
cases,  the  plaintiff  may  recover  as  much  as  he  proves  to  be  due  him, 
within  the  sum  mentioned,  or  claimed,  in  his  declaration.  If  the  contract 
is  in  writing,  and  recites  that  a  valuable  consideration  has  been  received, 
this  is  prima  facie  evidence  of  the  fact,  and  the  burden  of  disproving 
it  is  devolved  on  the  defendant.5 

(1)  i  Com.  Con.  5  ;  2  Bl.  Com.  443.  '     (2)  1  Com.  Con.  6. 

(3)  1  Chit.  pi.  112  to  122;  CowenTr.  25  to  ]57, 1st  ed.  (4)  1  Chit.  pi.  122. 

(5)  2Greenl.  ET.  sec.  105. 


36  ACTION  OF  TRESPASS.  [PART.  1, 

V.  OF  THE  ACTION  OP  TRESPASS. 

1.    Of  this  Action  generally. 

The  term  trespass,  in  its  most  extensive  signification,  includes  every 
description  of  wrong ;  on  which  account  an  action  on  the  case  has  been 
usually  called  "  trespass  on  the  case  ;"  but  technically  it  signifies  an 
injury  committed  vi  et  armis,  (by  force  and  arms,  or  by  unlawful 
means.)  The  action  of  trespass  lies  for  injuries  committed  with  force, 
and  generally  for  such  as  are  immediate.  Force  may  be  either  actual 
or  implied.1 

Until  recently,  as  will  be  seen,2  justices  of  the.  peace,  under  our 
statute,  had  jurisdiction  in  this  action  only  in  case  of  trespass  on  per- 
sonal property.  The  jurisdiction  being  now  extended  to  real  property, 
this  action  will  be  considered  under  the  two  different  heads  of  Injuries 
to  Personal- Property,  and  Injuries  to  Real  Property. 

2.  Injuries  to  Personal  Property. 

The  action  of  trespass  on  personal  property  lies  to  recover  damages 
for  an  injwy  done  to  personal  property,  occasioned  by  actual  or  implied 
force,  as,  for  abusing  or  shooting  the  animal  of  another,  or  intermeddling 
with  his  property  in  exclusion  of  his  right.8  The  action  of  trespass, 
in  its  application  to  injuries  to  personal  property,  may  be  considered  with 
reference,  1st,  To  the  nature  of  the  thing  affected ;  2d,  the  pkintifi  's 
right  thereto  ;  and,  3d,  the  nature  of  the  injury. 

And,  1st,  As  to  the  nature  of  the  thing  affected. 

Trespass  lies  for  taking  or  injuring  all  inanimate  personal  property, 
and  certain  domiciled  and  tame  animals,  of  which  the  law  takes  notice, 
and  all  domestic  animals  belonging  to,  or  lawfully  in  possession  of, 
another,  whether  he  be  the  owner  or  not. 

2d,    With  respect  to  the  plaintiff1  s  interest  in  the  property  affected. 

He  must,  at  the  time  when  the  injury  was  committed,  have  had  an 
actual  or  a  constructive  possession,  and  also  a  general  or  qualified 
property  therein,  which  may  be  either  —  1st,  in  the  case  of  the  absolute 
or  general  owner,  entitled  to  immediate  possession ;  2d,  the  qualified 
owner,  coupled  with  an  interest,  and  also  entitled  to  immediate  posses- 
sion ;  3d,  a  bailee,  with  a  mere  naked  authority,  unaccompanied  with 
any  interest,  except  as  to  remuneration  for  trouble,  &c.,  but  who  is  in 
actual  possession;  or,  4th,  actual  possession,  though  without  the 
consent  of  the  owner.4  In  the  first  instance,  the  person  who  has  the 

(1)  1  Chit.  pi.  191.       (2)  Ante,  pp.  27,  28.      (3)  5  Cowen  323;  7  Id.  735.     (4)  7  Johns  435. 


CHAP.  3.]  ACTION  OF  TRESPASS.  37 

absolute  or  general  property  may  support  this  action,  although  he  has 
never  had  the  actual  possession,  it  being  a  rule  of  law,  that  the  general 
property  of  personal  chattels  prima  facie,  as  to  all  civil  purposes  draws 
to  it  the  possession.1  In  the  second  case,  also,  that  of  the  bailee  who 
has  an  authority,  coupled  with  an  interest,  it  would  seem  that  trespass 
may  be  supported,  though  he  never  had  actual  possession,  for  an  injury 
done  during  his  interest,  as  in  the  case  of  a  factor,  or  consignee  of 
goods,  &c.,  in  which  he  has  an  interest  in  respect  to  his  commission. 
In  the  third  instance,  that  of  a  bailee,  &c.,  with  a  mere  naked  authority, 
coupled  only  with  an  interest  as  to  remuneration,  he  may  also  support  this 
action  for  an  injury  done  while  he  was  in  the  actual  possession  of  the 
thing  as  a  carrier,  factor,  pawnee,  a  sheriff,  or  the  like ;  but  it  is  other- 
Wise  in  case  of  a  mere  servant.2  In  the  fourth  instance,  that  of  the 
finder  of  any  article,  who  may  maintain  trespass  or  trover  against  any 
person  but  the  real  owner,  and  even  a  person  not  having  a  strict  legal 
right,  but  living  in  possession,  may,  it  seems,  support  this  action 
against  any  person  but  the  legal  owner. 3 

3.  Injuries  to  Real  Property. 

Trespass  is  also  the  proper  remedy  to  recover  damages  for  an  illegal 
entry  upon,  or  an  immediate  injury  to,  real  property  corporeal,  in  the 
possession  of  the  plaintiff.4  This  remedy,  in  its  application  to  injuries 
to  real  property,  may  be  considered  with  reference  —  1st,  to  the  nature 
of  the  property  affected  ;  2d,  to  the  plaintiff's  right  thereto  ;  and,  3d, 
to  the  nature  of  the  injury,  and  by  whom  committed. 

1st,  With  respect  to  the  nature  of  the  real  property  affected.  It 
must  in  general  be  something  tangible  and  fixed,  as  a  house,  a  room, 
outhouses,  or  other  buildings,  or  land.  Trespass  may  be  supported  for 
an  injury  to  land,  though  not  fenced  from  the  property  of  others  ;  the 
term  close  being  technical,  and  signifying  the  interest  in  the  soil,  and 
not  merely  a  close  or  inclosure  in  the  common  acceptation  of  that  term.5 
It  lies,  however  temporary  the  plaintiff's  interest,  and  though  it  be 
merely  in  the  profits  of  the  soil ;  as  where  a  person  contracted  with  the 
owner  of  a  close  for  the  purchase  merely  of  a  growing  crop  of  grass,, 
there,  it  was  decided,  that  the  purchaser  had  such  an  exclusive  posses- 
sion of  the  close,  though  for  a  limited  purpose,  that  he  might  maintain 

(1)  8  Johns.  435;  2  Saund.  47,  a.  (2)  2  Bl.  Com.  396. 

(3)  See  1  Chit.  pi.  194  to  197;  see  also,  4  Taunt.  549;  2  Saund.  47  d;  13  Johns.  141-276;  13 
Wend.  113. 

(4)  1  Chit.  pi.  200.  (5)  3  Scam.  259. 


38  ACTION    OF    TRESPASS.  [PART  1, 

trespass  quare  clausum  fregit  against  any  person  entering  the  close  and 
taking  the  grass  even  with  the  assent  of  the  owner.1 

2d,  With  respect  to  the  plaintiff's  right  or  interest  in  the  property 
affected.  The  gist  of  this  action  being  the  injury  to  the  possession, 
it  follows,  as  a  general  rule,  that  a  person  must  have  the  actual 
possession  of  real  property  to  enable  him  to  maintain  trespass,  and 
although  the  title  may  come  in  question,  yet  it  is  not  essential  to  the 
action  that  it  should.2  The  owner  of  wild  and  uncultivated  land  is  to 
be  deemed  in  possession  so  as  to  enable  him  to  maintain  trespass.8  But 
where  the  possession  alone  is  relied  on  to  maintain  this  action,  it  must 
be  an  actual  and  not  a  constructive  possession.4  Actual  and  exclusive 
possession,  without  a  legal  title,  is  held  sufficient  against  a  wrong  doer, 
or  a  person  who  cannot  show  any  right  or  authority  from  the  real 
owner.5 

3d,  With  respect  to  the  nature  of  the  injury  to  real  property. 
Trespass  can  only  be  supported  when  the  injury  was  committed  with 
force,  actual  or  implied,  and  immediate,  and  it  lies,  however  uninten- 
tional the  trespass ;  and  though  the  locus  in  quo  (place  where  the 
trespass  was  committed)  were  uninclosed,  or  the  door  of  the  house 
were  open,  if  the  entry  were  not  for  a  justifiable  purpose,  and  it  is  held 
that  even  shooting  at  and  killing  game  on  another's  land,  though 
without  an  actual  entry,  is  in  law  an  entry.6  Every  unauthorized  entry 
on  the  land  of  another  is  trespass,  for  which  an  action  will  lie.7  The 
supreme  court  of  this  State  have  decided  that  in  order  to  maintain  an 
action  of  trespass  for  damage  done  by  cattle  or  other  animals,  the  owner 
of  the  close  must  show  that  it  was  protected  by  a  good  and  sufficient 
fence  ;  that  the  rule  of  the  common  law,  which  requires  the  cxtfner  of 
such  animals  to  keep  them  on  his  own  land,  is  not  in  force  in  Illinois.8 
It  would  no  doubt  be  otherwise,  however,  when  it  is  shown  that  the 
defendant's  beasts  entered  the  plaintiff's  land  through  a  defect  in  the 
partition  fence,  which  the  defendant  was  bound  to  keep  in  repair.9 

It  is  held  that  when  a  trespass  is  committed  by  the  cooperation  of 
several  persons,  they  are  all  trespassers,  and  may  be  sued  jointly  and 
separately,  and  any  one  of  them  is  liable  to  pay  all  the  damages  occa- 
sioned by  the  acts  of  the  whole,  but  there  can  be  but  one  satisfaction 
of  damages.  Thus,  where  joint  trespassers  are  sued  separately,  and 
separate  judgments  obtained,  the  plaintiff  can  have  but  one  satisfaction 

(1)  1  Chit.  pi.  200.       (2)  1  Chit.  pi.  202;  15  111.  565.        (3)  8  Johns.  270.        (4)  1  Scam.  181. 
(5)  11  East  65;  13  Johns.  141;  TCowen  752;  2  Gil.  652.  (6)  1  Chit.  pi.  206. 

(7)  15  El.  53.          (8)  5  Gil.  130;  13  111.  609.          (9)  12  Johns.  433;  1  Cowen  79. 


CHAP.  3.]  ACTION  OF  TROVER.   '  39 

for  his  damages,  and  he  may  elect  the  highest  sum  recovered.  He  is 
entitled,  however,  to  his  costs  in  each  suit,  and  when  he  receives  his 
damages  from  either  one,  or  discharges  either  one,  without  payment, 
such  act  discharges  all.1 


VI.    OF   THE   ACTION   OF   TROVER". 

The  action  of  trover  and  conversion  was,  in  its  origin,  an  action  of 
trespass  on  the  case  for  the  recovery  of  damages  against  a  person  who 
had  found  goods  and  refused  to  deliver  them  on  demand  to  the  owner, 
but  converted  them  to  his  own  use  ;  from  which  word  finding,  (trouver) 
the  remedy  is  called  an  action  of  trover.  The  circumstance  of  the 
defendant  not  being  at  liberty  to  wage  his  law  in  this  action,  and  the 
less  degree  of  certainty  requisite  in  describing  the  goods,  gave  it  so 
considerable  an  advantage  over  the  action  of  detinue,  that  by  a  fiction 
of  law,  actions  of  trover  were  at  length  permitted  to  be  brought  against 
any  person  who  had  in  his  possession,  by  any  means  whatever,  the  per- 
sonal property  of  another,  and  sold  them  or  used  them  without  the 
consent  of  the  owner,  or  refused  to  deliver  them  when  demanded.  The 
injury  lies  in  the  conversion  and  deprivation  of  the  plaintiff's  property, 
which  is  the  gist  of  the  action,  and  the  statement  of  the  finding  or 
trover  is  now  immaterial  and  not  traversable ;  and  the  fact  of  the 
conversion  does  not  necessarily  import  an  acquisition  of  property  in  the 
defendant.  It  is  an  action  for  the  recovery  of  damages  to  the  extent 
of  the  value  of  the  thing  converted.  The  object  and  result  of  the  suit 
are  not  the  recovery  of  the  thing  itself,  which  can  only  be  recovered  by 
an  action  of  detinue  or  replevin.  Lord  Mansfield  thus  defines  this 
action:  "In  form  it  (i.  e.  the  trover)  is  a  fiction;  in  substance 
it  is  a  remedy  to  recover  the  value  of  personal  chattels  wrong- 
fully converted  by  another  to  his  own  use  ;  the  form  supposes  that  the 
defendant  might  have  come  lawfully  by  it,  and  if  he  did  not,  yet  by 
bringing  this  action,  the  plaintiff  waives  the  trespass  ;  no  damages  are 
recoverable  for  the  act  of  taking  ;  all  must  be  for  the  act  of  converting. 
This  is  the  tort  or  maleficium,  (a  wrong  act,)  and  to  entitle  the  plaint- 
iff to  recover,  two  things  are  necessary:  1st,  property  in  the  plaintiff '; 
2d,  a  wrongful  conversion  by  the  defendant.7'  2 

(1)  8  Cowen  111.  (2)  See  1  Chit.  pi.  168. 


40  HOW   SUITS   MAY   BE   INSTITUTED.  [PART  1, 


CHAPTEE   IV. 

OF  THE  COMMENCEMENT  OF  SUITS,  AND  THE  SEEVICE  AND 
EETUEN  OF  PROCESS. 

I.    HOW  SUITS  MAT  BE  INSTITUTED. 

II.  OF  THE  PROCESS  OF  SUMMONS,  AND  FORMS  THEREOF. 

III.  OF  THE  WARRANT,  AND  FORMS  THEREOF. 

IV.  OF  THE  ARREST  AND  SPECIAL  BAIL. 

1.  Of  the  Arrest. 

2.  Of  Persons  privileged  from  Arrest. 

3.  Of  Special  Bail. 

V.    OF  SUITS  BY  THE  VOLUNTARY  AGREEMENT  OF  THE  PARTIES. 

VI.  GENERAL  RULES  APPLICABLE  TO  THE  SUMMONS,  WARRANT,  OR 

WRIT  OF  ATTACHMENT. 
VII.  OF  SECURITY  FOB  COSTS. 

I.    HOW  SUITS  MAY  BE  INSTITUTED. 

Suits  may  be  instituted  before  justices  of  the  peace  by  process,  which 
may  be  either  a  summons,  warrant,  (or  capias,)  or  an  attachment,  or 
by  the  voluntary  agreement  of  the  parties.  The  proceedings  by  attach- 
ment will  be  properly  noticed  in  PART  THIRD  hereof. 


II.  OF  THE  PROCESS  OF  SUMMONS,  AND  FORMS  THEREOF. 

By  the  Revised  Statutes,  chap.  LIX.,  title  JUSTICES  AND  CONSTABLES, 
sec.  21,  p.  317,  it  is  enacted  that  "  Every  suit  before  a  justice,  except 
such  as  are  hereinafter  provided  for  in  a  different  manner,  shall  be  com- 
menced by  summons,  which  shall  be  in  the  following  form  as  nearly  the 
case  will  admit,  viz  : 


CHAP.  4.]  PROCESS  —  SUMMONS.  41 


STATE  OF  ILLINOIS, 
COUNTY, 


>•  ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : — 

You  are  hereby  commanded  to  summon  A.  B.  to  appear  before  me, 

at ,  on  the  : —  day  of ,  at o'clock to 

answer  the  complaint  of  C.  D.  for  a  failure  to  pay  him  a  certain  demand 
not  exceeding  one  hundred  dollars ;  and  thereof  make  due  return  as 

the  law  directs.  Given  under  my  hand  and  seal  this day  of 

,  184  .  JOHN  DOE,  J.  P. 

In  which  summons  the  justice  shall  specify  a  certain  place,  day  and 
hour  for  the  trial,  not  less  than  five,  nor  more  than  fifteen  days  from 
the  date  of  such  summons  ;  at  which  tune  and  place  the  defendant  is 
to  appear ;  which  process  shall  be  served  at  least  three  days  before 
the  time  of  trial  mentioned  therein,  by  reading  the  same  to  the  defend- 
ant or  defendants." 

In  estimating  time  for  the  return  of  a  summons,  one  day  is  to  be 
reckoned  inclusive  and  the  other  exclusive :  that  is,  the  day  the  sum- 
mons is  issued  is  not  reckoned,  but  the  day  of  return  is.  Thus,  a 
summons  which  is  to  be  made  returnable  in  five  days,  and  is  issued  on 
the  first  day  of  June,  must  be  made  returnable  on  the  sixth.1 

Upon  the  back  of  every  summons,  the  justice  should  make  the 
following  indorsement,  showing  the  name  of  the  process,  the  parties,  the 
amount  of  the  plaintiff's  demand  and  costs  due  at  the  time  of  issuing : 

Form  of  Indorsement  on  the  back  of  Summons. 


SUMMONS. 

A.  B. 

vs. 
C.X 


Demand  $- 
Cost  due,  ( 


The  object  of  the  indorsement  of  the  name  of  the  process  and  par- 
ties, will  be,  first,  for  the  convenience  of  the  constable,  who  may  have 
a  large  number  of  papers  in  his  hands  at  the  same  time ;  and,  secondly, 
for  the  convenience  of  the  justice  upon  filing  away,  who  may  have  frequent 
occasion  to  refer  to  papers  in  suits  that  have  passed  or  been  disposed  of. 


(1)  4  Scam.  421 . 


42  PROCESS SUMMONS.  [PART  1, 

Too  much  care  cannot  be  exercised  by  the  justice  in  preserving  and 
filing  all  papers  in  cases  disposed  of,  and  in  a  manner  that  he  may 
readily  refer  to  them  at  any  moment  when  called  upon  to  do  so  ;  all 
the  papers  belonging  to  or  in  any  way  pertaining  to  one  cause  should 
be  kept  and  filed  together ;  to  which  end  it  would  be  well  for  the  justice 
to  provide  himself  with  a  sufficient  quantity  of  large  envelopes,  which 
may  be  done  at  a  trifling  cost,  in  each  of  which  may  be  placed  all  the 
papers  pertaining  to  every  cause  disposed  of,  leaving  the  envelope 
unsealed,  and  indorsing  the  names  of  parties  upon  the  back  thereof  in 
proper  form. 

The  amount  indorsed  as  the  demand  upon  the  back  of  the  summons, 
should  in  general  be  the  true  amount  which  the  plaintiff  expects  to 
recover,  or  considers  himself  entitled  to,  over  and  above  any  set-off  of 
the  defendant.  The  object  of  this  indorsement,  therefore,  together 
with  the  costs  due  at  the  time  of  issuing  the  process,  is  to  apprise  the 
defendant  in  due  time  of  the  plaintiff's  claim,  and  afford  him  an  oppor- 
tunity of  payirig  the  amount  to  the  constable,  if  he  so  desires,  and  save 
further  costs,  and  being  in  accordance  with  the  Revised  Statutes, 
p.  319,  sec.  29. 

The  statute  requiring  the  justice  to  indorse  the  amount  of  the  plain- 
tiff's demand  upon  the  back  of  the  summons  or  warrant,  is  directory ; 
an  omission  to  do  so  will  not  operate  to  defeat  the  action.  The  plaintiff 
however  will  be  limited  to  the  amount  indorsed,  and  cannot  recover  a 
larger  sum.1 

The  issuing  of  the  summons  by  the  justice,  or  other  original  process, 
is  the  commencement  of  the  suit.2 

The  form  of  summons  on  the  preceding  page  is  the  general  form  pre- 
scribed by  the  statute,  in  civil  actions  before  justices  of  the  peace,  for  the 
commencement  of  suits,  and  which  is  required  to  be  followed  in  every 
instance,  as  nearly  as  the  case  will  admit ;  and  is  therefore  the  proper 
form  in  all  civil  actions,  save  perhaps  in  trespass  and  trover,  or 
debt  upon  statute  penalties,  in  which  cases  it  is  doubtless  proper  that 
it  should  be  varied  sufficiently  to  inform  the  defendant  of  the  nature  of 
the  plaintiff's  claim.8 

The  following  is  therefore  given  as  the  proper  form  of  summons  in 
the  several  actions  of  Trespass,  Trover  and  Debt  under  penal  statutes  : 

(1)  4  Gil.  64 ;  11  111.  619.  (2)  1  Scam.  30. 

(3)  In  the  case  of  Bedell  vs.  Janney  et  al.,  (4  Gil.  209,)  it  is  held  that  the  common  form  of 
summons,  as  prescribed  by  the  statute,  is  the  proper  form  for  both  the  action  of  debt  and 
assumpsit. 


CHAP.  4.]  PROCESS  —  SUMMONS.  43 

Form  of  Summons  in  Trespass  on  Personal  Property. 

STATE  OF  ILLINOIS,  ") 

COUNTY.      ) 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County: 
GREETING  : — 

You  are  hereby  commanded  to  summon  A.  B.  to  appear  before  me, 

at  my  office  in ,  on  the day  of ,  A.  D.,  18 — ,  at 

o'clock ,  to  answer  the  complaint  of  C.  D.  in  an  action  of 

trespass  on  personal  property,  for  a  failure  to  pay  him  a  certain  demand 
for  damages,  not  exceeding  one  hundred  dollars ;  and  thereof  make 

due  return  as  the  law  directs.    Given  under  my  hand  and  seal,  this 

day  of ,  A.  D.,  18— . 

JOHN  DOE,  J.  P.     [Seal.'] 

Indorse  upon  the  back  as  in  case  of  ordinary  summons,  except  the 
sum  demanded,  which  should  be  thus  :  "  Demand  for  damages,"  $ — . 

The  foregoing  form  will  be  the  proper  form  of  summons  in  case  of 
trespass  upon  real  estate,  by  striking  out  the  words  "  on  personal 
property,"  and  inserting  "  upon  real  estate." 

Form  of  Summons  in  Trover. 

STATE  OF  ILLINOIS, 

COUNTY, 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 
GREETING  : — 

You  are  hereby  commanded  to  summon  A.  B.  to  appear  before  me, 

at  my  office  in ,  on  the day  of ,  A.  D.,  18 — ,  at 

o'clock ,  to  answer  the  complaint  of  C.  D.,  in  an  action  of 

trover  and  conversion,  for  failure  to  pay  him  a  certain  sum,  not  exceed- 
ing one  hundred  dollars ;  and  thereof  make  due  return  as  the  law  directs. 

Given  under  my  hand  and  seal  this day  of ,  A.  D.,  18 — . 

JOHN  DOE,  J.  P.  [Seal.'] 

Indorse  upon  the  back,  as  in  case  of  summons  for  trespass. 

Form  of  the  ordinary  Summons  in  the  Action  of  Debt. 

STATE  OF  ILLINOIS,  ") 

COUNTY,      j  Sl 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 

GREETING  : — 

You  are  hereby  commanded  to  summon  A.  B.  to  appear  before  me, 
at ,  on  the  day  of ,  A.  D.,  18 — ,  at  


44  PROCESS SUMMONS.  [PART  1, 

o'clock ,  to  answer  the  complaint  of  C.  D.,  in  an  action  of  debt, 

for  a  failure  to  pay  him  a  certain  demand,  not  exceeding  one  hundred 
dollars ;  and  thereof  make  due  return  as  the  law  directs.     Given  under 

my  hand  and  seal,  this day  of ,  A.  D.,  18 — . 

JOHN  DOE,  J.  P.     [/Sea/.] 

Indorsed  upon  the  back  the  same  as  in  case  of  common  summons,1 
except  as  to  the  demand,  which  should  be  thus :  "  Debt,  $ ." 

By  chap.  CIV.  of  the  Rev.  Stat.,  p.  525,  a  penalty  of  eight  dollars 
for  each  tree  is  given  against  any  person  who  shall  cut,  fell,  box,  bore, 
or  destroy,  or  carry  away,  without  permission  from  the  owner  of  the 
land,  any  trees  of  a  certain  kind  therein  enumerated,  and  a  penalty  of 
three  dollars  for  each  tree  of  such  kind  as  are  not  there  enumerated ; 
which  penalties  may  be  recovered,  with  costs  of  suit,  either  by  action  of 
debt  in  the  name  and  for  the  use  of  the  owner  of  the  land,  or  by  action 
qui  tarn,2  in  the  name  of  any  person  who  will  first  sue  for  and  recover 
\the  same ;  the  one  half  for  the  use  of  the  person  so  suing  and  the  other 
half  for  the  use  of  the  owner  of  the  land.  We  will  now  proceed  to 
suggest  the  proper  form  of  summons  in  cases  for  the  recovery  of  statute 
penalties,  including  actions  qui  tarn. 

Form  of  Summons  in  the  Action  of  Debt  for  trespass  by  cutting 
timber,  where  the  owner  of  the  land  sues  for  himself. 

STATE  OF  ILLINOIS,  > 
COUNTY,      j  ss' 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

GREETING  : — 
You  are  hereby  commanded  to  summon  A.  B.  to  appear  before  me, 

at ,  on  the day  of ,  A.  D.,  18 — ,  at  —  o'clock,  to 

answer  the  complaint  of  C.  D.,  in  an  action  of  debt  for  cutting  timber, 
for  a  failure  to  pay  him  a  certain  demand,  not  exceeding  one  hundred 

(1)  Ante,  p.  41. 

(2)  Qui  tarn. — The  literal  meaning  of  this  term  is,  "  Who  as  well."    When  a  statute  im- 
poses a  penalty  for  the  doing  or  not  doing  an  act,  and  gives  that  penalty  in  part  to  whosoever 
will  sue  for  the  same,  and  the  other  part  to  the  commonwealth,  or  some  charitable,  literary, 
or  other  institution,  or  individual,  and  makes  it  recoverable  by  action,  such  actions  are 
called  qui  tarn  actions,  the  plaintiff  describing  himself  as  suing  as  well  for  the  commonwealth 
(or,  as  the  case  may  be,)  as  for  himself. —  2  Bouv.  L.  D.  402. 


CHAP.  4.]  PROCESS  —  SUMMONS.  45 

dollars  ;  and  thereof  make  due  return  as  the  law  directs.     Given  under 
my  hand  and  seal,  this  -  day  of  -  ,  A.  D.,  18  —  . 

JOHN  DOE,  J.  P.     [/SW.] 

Indorse  upon  the  back  the  same  as  in  case  of  the  ordinary  summons 
in  the  action  of  debt. 

Form  of  Summons  in  an  Action  QUI  TAW.  for  cutting  Timber. 
STATE  OF  ILLINOIS, 


COUNTY, 


") 

j 


st 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 

GREETING  :  — 
You  are  hereby  commanded  to  summon  A.  B.  to  appear  before  me  at 

-  ,  on  the  -  day  of  -  ,  A.  D.,  18  —  ,  at  -  o'clock 

-  ,  to  answer  the  complaint  of  A.  B.,  who  sues  as  well  for  G.  D. 
as  for  himself,  in  an  action  of  debt  for  cutting  timber,  for  a  failure  to 
pay  on  them  a  certain  demand,  not  exceeding  one  hundred  dollars  ;  and 
thereof  make  due  return  as  the  law  directs.     Given  under  my  hand 
and  seal  this  -  day  of  -  ,  A.  D.,  18  —  . 

JOHN  DOE,  J.  P.     [*SW.] 

The  two  preceding  forms,  with  suggestions  given,  will  doubtless 
suffice  to  illustrate  sufficiently  the  important  features  of  the  summons  in 
case  of  statute  penalties.  It  should  always  be  kept  in  mind  that  the 
object  and  office  of  the  summons,  or  process  of  that  nature,  is  to  inform 
the  defendant  that  proceedings  are  about  to  be  had  against  him,  giving 
him  notice  of  the  time  when,  and  the  place  where,  such  proceedings  are 
to  be  had.  Whence  it  follows  that  he  ought  also  to  be  sufficiently  ad- 
vised by  the  writ,  or  process,  of  the  nature  of  such  proceedings,  to 
afford  him  sufficient  opportunity  of  preparing  for  his  defense  ;  keeping 
this  in  mind,  the  justice  can  generally  determine  at  once  what  the  pro- 
cess should  contain,  whatever  may  be  the  cause  of  action,  or  its  peculiar 
foundation.  A  suit  should  not,  however,  in  general  be  dismissed  even 
though  it  may  seem  from  the  defendant's  showing  that  he  may  not  have 
been  fully  advised  by  the  process  of  the  particular  nature  or  extent  of 
the  plaintiff's  claim  or  demand,  but  the  justice  may,  in  his  discretion, 
continue  the  case,  to  afford  the  defendant  proper  opportunity  to  prepare 
for  trial,  if  he  shall  deem  it  essential  to  justice  so  to  do,  upon  being 
satisfied  that  good  cause  is  shown  for  such  continuance.1 

(1)  Rev.  Stat.319,  sec.  27. 


46  WARRANT.  [PART  1, 

The  proper  forms  to  be  observed  by  the  constable  in  making  return 
of  the  summons,  or  other  process,  will  be  found  in  PART  FOURTH 
hereof,  relating  more  particularly  to  the  office  and  duties  of  constables. 


III.    OF  THE  WARRANT,  AND  FORMS  THEREOF. 

By  sec.  22  of  the  Justices'  Act,  Revised  Statute  317,  it  is  enacted, 
that  "  If  previous  to  the  commencement  of  a  suit,  the  plaintiff  shall 
make  oath  that  there  is  danger  that  the  debt  or  claim  of  such  plaintiff 
will  be  lost,  unless  the  defendant  be  held  to  bail,  and  shall  state,  under 
oath,  the  cause  of  such  danger,  so  as  to  satisfy  the  justice  that  there  is 
reason  to  appro)?  end  such  loss,  the  justice  shall  issue  a  warrant,  which 
shall  be  in  the  following  form  as  nearly  as  the  case  will  admit,  viz : 

Form  of  Warrant  prescribed  by  Statute. 

STATE  OF  ILLINOIS, 
COUNTY. 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 
GREETING  : — 


You  are  hereby  commanded  to  take  the  body  of 

and  bring  him  forthwith  before  me  ^unless  special  bail  be  entered ;  and 
if  such  bail  be  entered,  you  will  then  command  him  to  appear  before 

me  at ,  on  the day  of ,  at o'clock ,  to 

answer  the  complaint  of  A.  B.  fi  .  a  failure  to  pay  him  a  certain  demand, 
not  exceeding  one  hundred  dollars  ;  and  hereof  make  due  return  as  the 

law  directs.     Given  under  my  hand  and  seal,  this day  of , 

184—.  JOHN  DOE,  J.  P. 

4. 

The  foregoing  is  the  ordinary  or  common  form  of  warrant,  or  capias, 
as  it  is  sometimes  termed  ;  but  being  styled  warrant  by  the  statute,  it 
should  always,  in  justices'  courts,  be  distinguished  by  that  name.  This 
is  the  form  to  be  observed  in  the  action  of  debt  or  assumpsit,  and  gen- 
erally in  all  cases  in  actions  arising  upon  contracts ;  but  in  case  of 
trespass  or  trover  this  form  will  be  varied  to  suit  the  action,  according 


CHAP.  4.]  WARIUNT.  47 

to  see.  89  of  the  Justices'  Act,  Revised  Statutes  328,  which  provides, 
that  "  When  any  person  shall  be  about  to  commence  an  action  of 
trespass  or  trover  before  a  justice  of  the  peace,  and  he  shall  make  oath 
before  such  justice,  that  he  verily  believes  that  the  benefit  of  whatever 
judgment  may  be  recovered  in  such  action,  will  be  in  danger  of  being 
lost,  unless  the  defendant  or  defendants  be  held  to  bail ;  upon  such  oath 
being  made,  the  justice  shall  issue  a  warrant  as  in  cases  for  debt,  varying 
the  same  to  suit  the  action." 

It  will  be  observed  that  simply  the  oath  of  the  plaintiff  is  all  that  is 
required  for  the  issuing  of  a  warrant ;  a  written  affidavit  seems  not  to 
be  necessary,  yet  the  oath  may  nevertheless  be  reduced  to  writing,  and 
filed  with  the  justice,  if  the  party  so  desires.  It  has  evidently  been  the 
policy  of  the  legislature  of  this  State  to  simplify  the  duties  of  justices 
of  the  peace,  as  much  as  possible,  by  dispensing  with  written  proceed- 
ings as  far  as  it  could  safely  be  done  and  yet  ensure  the  rights  of  the 
parties ;  hence  written  affidavits,  or  documents  of  that  nature,  preced- 
ing the  writ,  are  not  in  most  instances  required,  but  in  general  the 
matter  may  be  stated  orally  by  the  party,  and  the  law  will  generally 
presume  all  the  antecedent  steps  required  by  law  to  have  been  taken. 
It  is  therefore  recommended  to  the  justice  to  avoid  attempting  to  reduce 
to  writing  any  thing  more  than  the  statute  actually  requires,  for  while  a 
party  may  state  orally  all  that  is  required  to  entitle  nim  to  what  he 
seeks,  yet  should  a  justice,  unskilled  in  the  arbitrary  forms  and  techni- 
calities of  the  law,  attempt  to  reduce  the  same  to  writing,  he  might  fall 
far  short  of  the  requirements  of  the  law,  and  innocently  do  great  in- 
justice to  the  party ;  but  where,  however,  attorneys  are  employed,  these 
matters  may  properly  be  left  at  their  discretion. 

The  following  is  suggested  as  the  proper  form  of  the  oath  to  be 
administered  to  the  plaintiff  applying  for  the  ordinary  warrant  under 
section  22  : 

Form  of  Oath  for  Warrant  in  cases  for  Debt. 
You  solemnly  swear   (or  affirm  as  the  case  may  be)   that  there  is 
danger  that  your  debt  or  claim  against  C.  D.  will  be  lost  unless  he,  the 
said  C.  D.,  be  held  to  bail,  and  that  you  will  well  and  truly  state  the 
cause  of  such  danger.     So  help  you  God. 

The  justice  should  then  require  the  plaintiff  to  briefly  state  the  cause 
he  has  to  apprehend  such  danger,  and  upon  being  satisfied  from  the 


48  ARKEST   AND    SPECIAL    BAIL.  [PART  1, 

statement  of  the  plaintiff  that  there  is  reason  to  apprehend  such  danger, 
he  will  issue  a  warrant  as  aforesaid.1 

The  following  will  be  the  proper  form  of  the  oath  to  be  administered 
to  the  plaintiff  applying  for  a  warrant  in  case  of  trespass  or  trover, 
under  section  89 : 

Form  of  Oath  for  Warrant  in  case  of  Trespass  or  Trover. 
You  solemnly  swear  (or  affirm  as  the  case  may  be)  that  you  verily 
believe  that  the  benefit  of  whatever  judgment  may  be  recovered  by  you 
in  an  action  of  trespass  (or  trover  as  the. case  may  be)  about  to  be  com- 
menced against  C.  D.,  will  be  in  danger  of  being  lost,  unless  he,  the 
said  C.  D.,  be  held  to  bail.  So  help  you  God. 

Upon  the  proper  oath  being  made  in  case  of  trespass  or.  trover,  the 
justice  is  required,  as  will  be  seen,  to  issue  &  warrant  without  further 
inquiry ;  no  discretion  seems  allowed  him  as  in  cases  for  debt. 

The  oath  or  affidavit  for  a  warrant  can  be  made  by  the  agent  of  the 
creditor  or  plaintiff  as  well  as  by  the  creditor  himself.2 


IV.    OF  THE  ARREST,  AND  SPECIAL  BAIL. 

1.    Of  the  Arrest. 

To  arrest  is  to  stop ;  to  seize  ;  to  deprive  one  of  his  liberty  by  virtue 
of  legal  authority.  In  a  civil  action,  an  arrest  is  the  apprehension  of  a 
person  by  virtue  of  a  lawful  authority,  to  answer  the  demand  against 
him  in  such  action.8  Upon  a  warrant  in  such  case,  the  defendant  is 
actually  arrested  and  brought  before  the  justice  who  issued  the  warrant, 
unless  special  bail  be  entered  pursuant  to  the  statute.  An  arrest, 
technically  and  strictly  speaking,  is  by  the  corporeal  seizing  or  touching 
the  defendant's  body.4  But  it  is  now  held  that  to  constitute  an  arrest, 
no  actual  force  or  manual  touching  of  the  body  is  requisite  ;  it  is  suffi- 
cient if  the  party  be  within  the  power  of  the  officer,  and  submit  to  the 
arrest.5 

2.  Persons  Privileged  from  Arrest. 
Members  of  Congress,  by  Art.  I.  sec.  6,  of  the  Constitution  of  the 

(1)  See  12  111.  63.        (2)  12  111.  61.         (3)  1  Bouv.  L.  D.  128.        (4)  3  Bl.  Com.  288. 
(5)  8  Greenl.  127;  1  Wend.  210;  2  Blackf.  194. 


CHAP.  4.]  SPECIAL  BAIL.  49 

United  States,  are  in  all  cases,  except  treason,  felony  and  breach  of  the 
peace,  privileged  from  arrest,  during  their  attendance  at  the  session  of 
their  respective  Houses,  and  in  going  to  or  returning  from  the  same. 
By  the  constitution  of  the  State  of  Illinois,  Art.  Ill,  Sec.  17,  senators 
and  representatives  in  the  State  legislature  are  in  like  manner  privi- 
leged from  arrest  during  the  session  of  the  general  assembly,  and  in 
going  to  or  returning  from  the  same.  By  the  State  constitution  also, 
Art.  VI,  Sec.  3,  electors  are,  except  in  cases  of  treason,"  felony ,  or  breach 
of  the  peace,  privileged  from  arrest  during  their  attendance  at  elections, 
and  in  going  to  or  returning  from  the  same.  By  Art.  VIII,  Sec.  6,  the 
militia  are  for  like  causes  as  aforesaid  privileged  from  arrest  during  their 
attendance  at  musters  and  election  of  officers,  and  in  going  to  or  re- 
turning from  the  same.  Attorneys  and  counselors  at  law,  judges, 
clerks  and  sheriffs,  and  all  other  officers  of  the  several  courts  within 
this  State,  are  likewise  privileged  from  arrest  while  attending  courts, 
and  whilst  going  to  or  returning  from  the  same.1  Suitors,  witnesses, 
and  other  persons  necessarily  attending  any  courts  of  record  upon  busi- 
ness, are  not  to  be  arrested  during  their  actual  attendance,  which  in- 
cludes their  necessary  going  and  returning. 

The  duties  of  constables,  in  relation  to  arrests,  will  be  properly 
pointed  out  in  that  part  of  this  work  which  relates  more  particularly  to 
the  office  and  duties  of  constables. 

3.    Of  Special  Bail. 

By  the  Rev.  Stat.  317,  Justice  Act,  Sec.  22,  it  is  provided  that  "in 
all  cases  the  defendant  shall  have  a  right  to  release  his  or  her  body 
arrested  by  virtue  of  a  warrant,  by  giving  special  bail  to  the  constable 
executing  the  same,  which  shall  be  indorsed  on  the  back  of  the  warrant 
in  the  following  form,  as  nearly  as  the  case  will  admit,  viz. : 

"I,  G.  F.,  acknowledge  myself  special  bail  for  the  within  named  C. 
D.  Witness  my  hand,  this day  of 184  .  G.  F. 

"  Which  indorsement  shall  be  signed  by  one  or  more  securities,  to  be 
approved  by  the  constable  taking  the  same,  and  shall  have  the  force 
and  effect  of  a  recognizance  of  bail,  the  condition  of  which  is,  that  the 
defendant,  if  judgment  shall  be  given  against  him  or  her,  will  pay  the 
same  with  costs,  or  surrender  his  or  her  body  in  execution ;  and  in  de- 
fault of  such  payment  or  surrender,  the  goods  and  chattels  of  the  bail 
shall  be  liable  for  the  payment  of  the  judgment  and  costs.  Provided, 

(1)  Rev.  Stat.,  74,  Sec.  7. 


50  SPECIAL   BAIL.  [PART    1, 

That  if  the  body  of  the  defendant  shall  be  rendered  in  execution  by 
himself  or  his  bail  within  thirty  days  after  the  issuing  of  such  execu- 
tion, or  if  a  sufficiency  of  the  defendant's  property  shall  be  found  to 
satisfy  the  judgment  and  costs,  the  bail  shall  be  exonerated;  but  if 
neither  the  body  of  the  defendant  shall  be  surrendered,  nor  a  sufficiency 
of  his  or  her  property  can  be  found  within  the  time  aforesaid  to  pay  the 
judgment  and  costs,  then  the  justice  shall  issue  execution  against  the 
bail,  who  shall  be  dealt  with  in  the  same  manner  as  if  he  were  de- 
fendant." 

"  Sec.  92.  In  all  cases  in  which  a  defendant  shall  give  special  bail 
under  the  provisions  of  this  chapter,  and  shall  not  be  surrendered  on  or 
before  the  return  day  of  the  fieri  facias  upon  the  judgment,  nor  a  suf- 
ficiency of  property  be  found  to  pay  the  judgment  and  costs  within 
the  time  aforesaid,  it  shall  be  the  duty  of  the  justice  of  the  peace,  upon 
the  application  of  the  plaintiff  or  his  agent,  to  issue  a  summons  against 
the  special  bail  in  the  following  form  as  nearly  as  may  be,  to  wit : 


STATE  OF  ILLINOIS, 
COUNTY 


IS,) 
cr, j 


The  People  of  the  State  of  llllinois,  to  any  Constable  of  said  County, 
GREETING  : — 

You  are  hereby  commanded  to  summon to  appear  before 

me  at ,  on  the day  of at  o'clock,  to  show 

cause,  if  any  he  have,  why  judgment  should  not  be  rendered  against 

him,  as  the  special  bail  of upon  a  capias  issued  by  me  against  him 

in  favor  of for  the  sum  of dollars  and  cents,  the 

amount  of  the  judgment  rendered  against  the  said in  favor  of 

the  said  ,  and   hereof  make  due  return  as  the  law  directs. 

Given  under  my  hand  and  seal  this day  of 18 — . 

JOHN  DOE,  J.  P.     [L.  S.] 

"  SEC.  93.  If  the  defendant  does  not  appear,  the  justice  shall  hear 
the  case,  enter  judgment,  and  award  execution  as  in  other  cases. 

"  SEC.  94.  If  the  defendant  shall  appear  at  the  time  and  place  ap- 
pointed for  trial,  he  shall  be  permitted  to  show  cause  for  his  failure  to 
comply  with  the  condition  of  his  undertaking,  or  to  show  that  he  hath 
complied  with  the  same ;  and  if  it  shall  appear  that  the  defendant  was 
prevented  from  surrendering  the  body  of  the  original  defendant  by  the 
act  of  the  plaintiff,  or  that  the  said  original  defendant  had  departed  this 
life  previous  to  the  time  required  for  making  such  surrender,  or  that  his 


€lIAP.    4.]  SPECIAL  BAIL.  51 

health  was  such  as  to  endanger  his  life  by  such  surrender,  or  that  he 
had  delivered  the  body  in  execution  according  to  the  condition  of  the 
recognizance,  then  the  bail  shall  be  released  and  discharged  from  all 
liability." 

As  will  readily  be  seen  there  is  some  little  conflict  or  discrepancy  be- 
tween sections  22  and  92 ;  the  first  provides  for  execution  direct  against 
the  bail  in  case  of  default  of  the  defendant,  while  the  second  provides 
that  a  summons  shall  be  issued  against  the  bail  in  case  of  such  default, 
and  that  judgment  be  obtained  before  execution.  Section  92  being  a 
subsequent  section,  however,  will  doubtless  have  the  effect  of  qualifying 
the  provisions  of  section  22,  yet  the  effect  of  the  indorsement  of  special 
bail  upon  the  warrant  is  not  changed  by  the  provisions  of  section  92, 
but  only  the  mode  of  enforcing  the  obligation ;  and  it  seems  clear  from 
this  last  section,  that  the  bail,  in  order  to  exonerate  himself,  must  sur- 
render the  defendant  on  or  before  the  return  day  of  the  execution  against 
the  goods  and  chattels  of  such  defendant,  provided  the  same  shall  not 
have  been  satisfied. 

The  defendant  may  come  in  at  any  time  and  surrender  himself,  or  he 
may  be  surrendered  by  his  bail,  and  in  case  he  will  not  voluntarily  sub- 
mit to  be  surrendered,  the  bail  may  arrest  and  take  him  at  any  time  and 
in  any  place  for  the  purpose  of  surrendering  him.1  The  power  of 
taking  and  surrendering  is  not  exercised  under  any  judicial  process,  but 
results  from  the  nature  of  the  undertaking  by  the  bail.  The  bail  piece 
is  not  process,  nor  in  the  nature  of  it,  but  merely  a  record  or  memo- 
randum of  the  delivery  of  the  principal  to  his  bail.  It  is  clear  that  the 
jurisdiction  of  the  court  can  in  no  way  control  the  authority  of  the  bail, 
and  as  little  can  the  jurisdiction  of  the  State  affect  his  right,  as  between 
the  bail  and  his  principal ;  for  in  the  language  of  the  books,  bail  are 
said  to  have  their  principal  always  upon  a  string,  which  they  may  pull 
whenever  they  please,  and  surrender  him  in  their  own  discharge ;  they 
may  take  him  even  on  a  Sunday,  and  may  confine  him  till  the  next  day, 
and  then  surrender  him  ;  and  they  may  break  open  the  outer  door  of 
the  principal,  if  necessary,  in  order  to  arrest  him ;  and  bail  may  like- 
wise depute  another  to  take  and  surrender  their  principal.2 

If  the  plaintiff  makes  an  agreement  with  the  defendant  whereby  the 
payment  of  the  judgment  is  delayed  until  a  later  period  than  it  could 
have  been  enforced,  and  without  the  assent  of  the  bail,  the  latter  will 

(1)  2  Johns.  104  ;  Tidd's  Pr.  147. 

(2)  7  Johns.  145. 


52  OP  SUITS  BY  VOLUNTARY  AGREEMENT.       [PART  1, 

be  discharged  ;*  and  so  where  the  plaintiff  has  prevented  a  surrender  by 
throwing  the  bail  off  his  guard.2 


V.     OP    SUITS    INSTITUTED   BY   THE   VOLUNTARY   AGREEMENT  OF    PARTIES. 

Rev.  Stat.  321,  Chap.  LIX,  Sec.  42.  "If  both  parties  agree  to  have 
a  difference  decided  by  a  justice  of  the  peace  without  process,  he  shall 
enter  the  same  on  his  docket,  noting  particularly  such  consent,  and 
proceed  as  in  other  cases." 

In  instituting  suits  before  justices  of  the  peace  by  the  voluntary 
agreement  of  the  parties,  under  our  statute,  it  is  held8  that  the  parties 
must  actually  appear  before  the  justice  in  person,  and  there  waive  the 
service  of  process ;  that  a  defendant  cannot  authorize  a  justice  to  render 
judgment  against  him  in  favor  of  the  plaintiff  for  an  amount  named  in 
the  letter,  although  the  defendant  expressly  state  that  he  waived  the 
service  of  process  and  authorized  the  judgment ;  that  a  judgment  obtained 
under  such  circumstances  is  not  only  voidable,  but  is  totally  void. 


VI.      GENERAL   RULES   APPLICABLE  TO  THE  SUMMONS,  WARRANT,  OR  WRIT 
OF    ATTACHMENT. 

In  all  process,  either  by  summons,  warrant,  or  writ  of  attachment,  if 
either  party  sues  or  is  sued  in  a  particular  character,  such  character 
ought  regularly  to  be  set  forth  in  the  process. 

It  is  held,  however,  that  upon  common  process,  not  bailable,  and ' 
which  does  not  specify  the  character  or  right  in  which  the  plaintiff  sues, 
that  is  in  his  name  alone,  he  may  declare  qui  tarn,  or  as  executor,  or 
administrator,  or  assignee,  or  in  any  other  special  character,  for  this 
does  not  tend  to  enlarge,  but  to  narrow  the  demand  which  the  defend- 
ant was  called  upon  to  answer.  But  if  the  process  is  in  a  special 
character,  the  plaintiff  must  declare  in  the  same  character  and  cannot 
declare  generally.4 

Where  the  plaintiff  intends  his  suit  to  be  in  a  special  character,  it 
ought  properly  to  be  so  expressed  in  the  process,  in  order  that  the  pro- 
ceedings may  appear  regular,  and  that  the  justice  may  enter  the  suit 
properly  in  his  docket  at  its  commencement,  and  for  this  further  reason, 

(1)  10  Johns.  587.  (2)  4  Johns.  480. 

(3)  2  Scam.  468.  (4)  2  Caine,  136  ;  1  Chit.  PI.  284. 


CHAP.  4.]          RULES  APPLICABLE  TO  SUMMONS,  ETC,  53 

that  usually  there  is  no  formal  written  declaration  wherein  the  character 
in  which  the  plaintiff  sues  is  set  forth.  When  the  suit  is  in  a  special 
character,  it  should  also  be  set  forth  in  all  process  subsequent  to  that  at 
the  commencement  of  the  suit,  as  a  subpoena  venire,  etc. 

The  practice  of  putting  only  the  initial  letter  of  the  plaintiff  or 
defendant's  first,  or  Christian  name,  in  the  process,  is  a  very  bad  one,  and 
ought  not  to  be  practiced  or  countenanced.  The  full  Christian  and  sur- 
name should  always  be  inserted,  when  known.  Names  have  been  given 
to  distinguish  individuals,  and  under  our  customs,  the  name  of  an 
individual  is  comprised  in  both  his  Christian  and  surname,  hence  the 
necessity  of  using  the  full  Christian  name  in  all  cases  where  the  name  is 
material. 

The  mis-spelling  a  name,  when  the  variation  does  not  materially 
change  the  sound,  is  no  ground  for  a  plea  in  abatement,  or  for  discharg- 
ing the  process.  But  the  reversing  the  order  of  Christian  names,  as 
"  Richard  John  "  instead  of  "  John  Richard,"  is  in  law  a  mis-nomer, 
and  may  be  pleaded  in  abatement.1 

The  omission  of  the  middle  name,  or  the  initial  letter  thereof,  com- 
monly called  the  middle  letter,  as  for  instance  John  Doe,  when  the 
actual  name  is  John  S.  Doe,  is  not  a  legal  mis-nomer.  The  omission  is 
immaterial,  for  the  law  knows  but  one  Christian  name.  It  is  competent, 
if  necessary,  to  show  that  the  individual  is  known  as  well  without  as  with 
the  middle  name.2 

Partners  must  sue  and  be  sued  in  their  individual  names,  and  not  in 
the  name  of  the  firm,  unless,  of  course,  the  name  or  style  of  the  firm 
shall  properly  express  both  the  Christian  and  surname  of  the  partners 
composing  the  firm.8 

Rev.  Stat.  319,  Sec.  29.  "  The  justice  shall  indorse  on  the  back  of 
every  summons  or  warrant,  the  sum  demanded  by  the  plaintiff,  with  the 
costs  due  thereon,  and  the  defendant  may  pay  the  same  to  the  constable 
.in  whose  hands  such  process  may  be,  who  shall  give  a  receipt  therefor, 
which  shall  exonerate  the  defendant  from  debt  and  costs." 

"  SEC.  81.  When  the  defendant,  upon  whom  any  summons  or  war- 
rant issuing  from  a  justice  of  the  peace  shall  be  served,  shall  pay,  or 
tender  to  the  constable  the  amount  actually  due,  with  all  costs  then 
accrued,  and  shall  prove  the  same  upon  trial,  and  bring  the  money 

(1)  1  Chit.  PI.  280.  (2)  6  Johns.  84;  2  Co.wen,  463. 

(3)  3  Caine,  170;  1  Scam.  475. 


54  SECURITY   FOR   COSTS.  [PART   1, 

forward  and  deposit  it  with  the  justice  of  the  peace,  no  costs  which  shall 
thereafter  accrue  shall  be  adjudged  against  him,  but  the  plaintiff  shall 
pay  the  same." 

Irregularity  of  process,  whether  it  be  void  or  voidable,  is  cured  by 
appearance  without  objection.  A  defendant  cannot  take  advantage  of 
any  error  or  defect  in  the  process,  after  he  has  appeared  to  it,  even 
though  the  process  be  void,  and  he  was  at  the  tune  ignorant  of  the' 
defect.1 

All  objections  to  the  issuing,  the  form,  or  the  service  or  return  of 
process,  must  be  taken  advantage  of  the  very  first  opportunity  ;  and  if 
the  defendant  plead  to  the  suit,  or  take  any  similar  step,  which  sup- 
poses the  process  to  be  valid,  he  cannot  afterwards  object  to  the  process 
itself.2 

But  the  mere  act  of  appearing  to  the  process,  for  the  purpose  of  rais- 
ing the  objection,  cannot  be  construed  into  a  waiver  of  its  defects  ;  for 
if  this  were  the  case,  there  could  be  no  such  thing  as  an  objection  to 
process8 

The  constable's  return  upon  the  process  is  conclusive  upon  the 
defendant,  and  the  truth  of  it  cannot  be  traversed  or  questioned  by  him 
in  that  suit,  on  a  plea  in  abatement  or  otherwise,  in  the  cause  in  which 
it  issues.  But  if  it  be  false  in  any  particular,  an  action  will  lie  against 
the  constable,  at  the  suit  of  the  party  injured.4 

The  return  is  the  evidence  upon  which  the  statute  authorizes  and  re- 
quires the  justice  to  proceed.  He  must  therefore  obtain  jurisdiction  of 
the  person  of  the  defendant  by  virtue  of  the  return,  and  the  judgment 
which  may  be  subsequently  rendered,  will  protect  the  justice,  the  party, 
and  the  officer  who  may  be  instrumental  in  enforcing  it.  The  return  of 
the  officer  will  be  conclusive  upon  the  defendant  so  far  as  the  pro- 
ceedings in  that  suit  are  concerned.5 


VII.    OF   SECURITY   FOR   COSTS. 

Rev.  Stat.  327,  Chap.  LIX.  Sec.  83.  "  No  person  who  is  not  a  resi- 
dent of  this  State  shall  commence  any  action  before  a  justice  of  the  peace 
until  such  non-resident  shall  file  with  the  justice  before  whom  such  action 
may  be  brought,  a  bond,  with  sufficient  security  for  the  payment  of 
all  costs  which  may  be  awarded  against  the  plaintiff,  should  he  fail  in 

(1)  1  Scam.  251.  (2)  17  Johns.  63;  1  Scam.  266.  (3)  14  Johns.  481. 

(4)  14  Johns.  481-2.  (5)  3  Wend.  302. 


CHAP.  4.]  SECURITY  FOR  COSTS.  55 

his  suit ;  which  bond  shall  be  in  the  following  form,  as  near  as  may 
be,  inserting  the  names  of  the  parties,  the  county  and  State  : 

STATE  OP  ILLINOIS,  \       *         if '  -n 

COUNTY  OF  j      *s"       f   Demand  $ 

(.  t-.  v.  ) 

I,  E.  F.,  do  enter  myself  security  for  all  costs  that  may  accrue  in  the 
above  case  this day  of ,  18 — . 

"  SEC.  84.  Such  bond  shall  be  signed  by  the  security,  and  if  the 
said  plaintiff  shall  be  cast  in  his  suit,  discontinue  or  make  default,  and 
shall  not  within  ten  days  thereafter  pay  to  the  justice  all  the  costs  that 
may  have  been  occasioned  to  the  defendant,  to  the  justice  and  constable, 
jurors  or  witnesses,  the  justice  shall  issue  his  execution  against  the 
security  for  the  amount  thereof,  accompanied  with  a  bill  of  costs,  in  which 
shall  be  set  down  every  particular  charged.  And  if  any  suit  shall  be 
commenced  by  a  non-resident  as  aforesaid,  without  filing  a  bond  for  costs 
as  aforesaid,  the  suit  shall  be  dismissed  on  the  motion  of  the  defendant, 
and  the  plaintiff  shall  be  liable  to  pay  all  costs  occasioned  thereby, 
which  may  be  recovered  before  any  justice  of  the  county,  hi  the  name 
of  the  party  injured." 

"Nothing  is  more  certain,"  to  use  the  language  of  our  supreme 
court,1  "  from  the  act  regulating  the  proceedings  before  justices  of  the 
peace  in  civil  actions,  than  that  a  non-resident  plaintiff  shall  not  institute 
a  suit  until  he  shall  have  given  a  bond  for  costs."  It  is  a  disability 
imposed  on  him,  and  effectually  precludes  his  right  to  sue  until  the  bond 
be  given  ;  and  the  disability  will  not  be  removed  although  he  sues  for 
the  use  of  a  resident. 

In  all  actions  before  justices  of  the  peace  on  office  bonds  for  the  use 
of  any  person,  qui  tarn  actions,  or  actions  on  any  penal  statute,  security 
for  costs  shall  also  be  filed  before  the  commencement  of  the  suit,  the 
same  as  in  case  of  non-residents,2  and  the  same  form  of  bond  may  be 
used  as  in  case  of  non-residents. 

(1)  1  Scam.  193.  (2)  5  Oilm.  559;  12  111.  27. 


56  APPEARANCE   OF   PARTIES.  [PART    1, 


CHAPTER    V. 

OF  THE  APPEARANCE  OF  THE  PARTIES. 

I.  OF  APPEARANCE  OF  PARTIES  OF  FULL  AGE. 
II.  OF  APPEARANCE  OF  INFANTS. 
III.  OF   DEFAULT    OR  WANT   OF    APPEARANCE,    AND   THE   EFFECT 

THEREOF. 
I.  OF  APPEARANCE  OF  PARTIES  OF  FULL  AGE. 

In  all  courts  plaintiffs  have  the  liberty  of  prosecuting,  and  defendants 
have  the  privilege  of  defending  in  their  own  proper  person,1  except 
infants,  however,  and  corporations  aggregate.  The  former  must  appear 
by  guardian  or  next  friend,2  and  the  latter  by  attorney.8 

Appearance  is  the  presence  of  the  parties  in  court  upon  return  of  the 
process,  and  although  the  party  appear  by  attorney,  yet  in  contempla- 
tion of  law,  the  party  himself  is  presumed  to  be  present.4 

In  justices'  court,  it  does  not  follow  that  the  attorney  should  be  a 
licensed  attorney  at  law,  but  it  may  be  any  person  whom  the  party 
thinks  proper  to  select,  to  aid  him  in  prosecuting  or  defending  his  suit. 

The  authority  to  appear  and  act  as  attorney  may  be  either  written  or 
by  parol,  and  a  mere  verbal  request  for  that  purpose  is  sufficient 
authority  to  appear  and  manage  the  cause,  though  not  to  release  the 
interest  of  a  witness.5 

It  is  held  that  where  an  attorney  commences  an  action  in  the  name  of 
another,  or  appears  for  another,  the  court  will  presume  that  he  has 
authority  to  do  so  until  the  contrary  is  shown ;  and  if  such  suit  is 
instituted,  or  appearance  entered  without  legal  authority,  the  remedy  is 
by  motion  to  the  court  founded  on  evidence,  to  show  the  abuse  (in  act- 

(1)  Her.  Stat.  76,  Sec.  12.          (2)  Rev.  Stat.  267.  (4)  1  BOUT.  L.  D.  114. 

(5)  11  Johns.  464.  (3)  Tidd  63;  1  Chit.  PI.  685. 


CHAP.    5.]  APPEARANCE    OP    INFANTS.  57 

ing  without  such  authority)  of  process  of  the  court,  or  irregular  act  of 
the  attorney  in  entering  such  appearance.'1 

A  married  woman  when  sued  without  her  husband,  must  appear  in 
person,  but  where  the  husband  and  wife  sue,  or  are  sued,  the  husband 
may  retain  an  attorney  for  them  both.2 

An  idiot  must  likewise  appear  in  person,  and  any  one  may  be  ad- 
mitted to  sue  or  defend  for  him,  but  a  lunatic  must  appear  by  guardian, 
if  within  age.8  See  Kev.  Stat.  277,  Sec.  5,  which  provides  that  con- 
servators may  sue  and  be  sued  in  every  instance  as  the  representatives 
of  the  lunatic. 


II.     OF   APPEARANCE   OF   INFANTS. 

An  infant  or  minor  is  every  person  under  twenty-one  years.4  The 
term  minor  is  synonymous  with  that  of  infant.  The  terms  major  and 
minor  are  more  particularly  used  in  the  civil  law.  The  common  law 
terms  are  adult  and  infant.5  An  infant  cannot  appear  by  attorney,  he 
must  therefore  appear  by  guardian  or  next  friend. 

Kev.  Stat.  267,  Sec.  13.  "Minors  may  bring  suits  in  all  cases 
whatever,  by  any  person  that  they  may  select  as  their  next  friend ;  and 
the  person  so  selected  shall  file  bond  with  the  clerk  of  the  circuit 
court,  or  justice  of  the  peace  before  whom  the,  suit  may  be  brought, 
acknowledging  himself  bound  for  all  the  costs  that  may  accrue  and 
legally  devolve  upon  such  minor.  And  after  bond  shall  have  been 
so  filed,  said  suit  shall  progress  to  final  judgment  and  execution,  as  in 
other  cases." 

Form  of  Bond  for  Costs  by  next  friend  in  suit  by  minor. 

STATE  OF   ILLINOIS,  )  In  Justice's  Court, 

Lake  COUNTY,      ]"          Before  E.  S.  Ingalls,  Esq.,  J.  P. 

A.  B.^ 

vs.     >-          Demand  $ 

C.  D.) 

I,  E.  F.,  do  hereby  acknowledge  myself  bound  for  all  the  costs  that 
may  accrue  and  legally  devolve  upon  the  said  A.  B.  in  the  above  entitled 

cause.     Witness  my  hand  and  seal  this day  of A.  D. 

185—.  E.  F.  (Seal.*) 

(1)  1  Scam.  293.  (2)  2  Saund.  212.  (3)  2  Saund.  333. 

(4)  1  Bouv.  L.  D.  685.  (5)  2  Id.  143. 


58  DEFAULT  OR  WANT  OF  APPEARANCE.       [PART  1, 

If  an  infant  plaintiff  appear  and  prosecute  a  suit  in  person,  or  by 
attorney,  the  defendant  can  take  advantage  of  it  only  by  moving  to  set 
aside  the  proceedings  for  irregularity,  or  by  pleading  in  abatement.  If 
the  defendant  in  such  a  case  plead  in  chief  or  in  bar  of  the  action,  he 
admits  the  due  appearance  of  the  plaintiff  and  cannot  take  advantage  of 
it  afterwards.  It  is  not  a  ground  of  non-suit  at  the  trial.1 

In  a  suit  against  an  infant,  the  plaintiff  should  see  that  a  guardian 
is  appointed  for  the  defendant,  for  if  no  such  appointment  should  be 
made,  a  judgment  against  the  defendant  would  be  erroneous.2  The 
guardian  may  be  nominated  by  the  infant,  and  should  he  fail  to  do  so, 
the  court  will  appoint  such  person  as  may  be  thought  proper,  which 
guardian  should  be  a  real  person.8 


III.  OF  DEFAULT  OR  WANT  OF  APPEARANCE,  AND  THE  EFFECT  THEREOF. 

Rev.  Stat.  318,  Sec.  23.  "  If  the  defendant  shall  not  appear  at  the 
tune  of  trial,  after  giving  bail  as  aforesaid,  or  after  being  served  with  a 
summons,  as  described  in  the  twenty-first  section  of  this  chapter,  and 
no  sufficient  reason  be  assigned  to  the  justice  why  he  or  she  does  not 
appear,  then  the  justice  shall  proceed  to  hear  and  determine  the  cause, 
in  the  absence  of  said  defendant,  but  shall  not  give  judgment  in  favor 
of  the  plaintiff,  unless  the  said  plaintiff  shall  fully  prove  his  demand  in 
the  same  manner  as  if  the  defendant  had  been  present  and  denied  the 
same. 

"  SEC.  24.  If  the  plaintiff  or  his  agent  shall  not  appear  at  the  time 
appointed  for  the  trial  aforesaid,  and  no  sufficient  reason  shall  be 
assigned  to  the  justice  why  such  plaintiff  or  his  agent  does  not  appear, 
the  justice  shall  dismiss  the  suit,  and  the  plaintiff  shall  pay  the  costs, 
unless  the  defendant  shall  consent  that  such  suit  shall  be  continued  to 
another  day,  in  which  case  the  same  proceedings  shall  take  place  at  the 
second  day,  so  fixed  for  the  trial  as  above  provided ;  but  this  section 
shall  not  require  the  dismissal  of  a  suit  on  a  note  placed  in  the  hands 
of  a  justice  for  collection." 

The  justice  should  always  allow  a  reasonable  time  for  the  appearance 
of  the  parties  after  the. hour  appointed  in  the  process  or  fixed,  on  continu- 
ance, for  trial.  In  some  States  this  is  regulated  by  statute.  In  the 

(1)  7  Johns.  373.        (2)  8  Johns.  418;  2  Cowen,  430.    (3)  2  Cowen,  430. 


CHAP.  5.]      DEFAULT  OR  WANT  OF  APPEARANCE.  59 

state  of  New  York,  one  hour  is  given  after  the  tune  specified  in  the 
summons  or  attachment,  and  which  is  construed  to  apply  also  to 
adjournments.1  In  this  State  there  is  no  such  statutory  regulation,  but 
the  general  practice  is  to  wait  full  one  hour,  and  which  delay  is  proper 
and  cannot  be  deemed  unreasonable. 

(1)  20  Johns.  809. 


6U  OF   PLEADINGS   IN   GENERAL.  [PART  1, 


CHAPTER    VI. 

i  OF  PLEADINGS. 
I.  OF  PLEADINGS  IN  GENERAL. 

H 

IE.  OF  THE  PROPER  PARTIES  TO  THE  ACTION. 

1.  Plaintiff's. 

2.  Defendants. 

HI.  OF^PLEADINGS  WHICH  USUALLY  OCCUR  IN  JUSTICES'  COURTS. 
IV.  QF  THE  DECLARATION.  , 

V.  OF  PLEADINGS  ON  THE  PART  OF  THE  DEFENDANT. 
u     1.  'When  incumbent  on  the  Defendant  to  Plead. 

2.  Of  Pleas  to  the  Jurisdiction  and  in  Abatement. 

3.  Of  Pleas  in  Bar. 

4.  Of  Set-off. 

5.  Of  Pleas  puis  durrien  continuance. 

6.  Of  Pleading  Title. 
VI.  OF  THE  REPLICATION. 

VII.  OF  DEMURRERS. 

I.    OF   PLEADINGS   IN   GENERAL. 

The  parties  having  properly  appeared,  the  next  subject  of  consider- 
ation is,  the  pleadings  in  the  cause.  By  the  pleadings  in  a  suit,  it  is 
not  meant,  as  by  many  people  it  is  understood,  the  arguing  or  advocat- 
ing the  cause  before  the  court;  but  the  allegations  of  the  parties, 
briefly  setting  forth  the  cause  of  action  on  the  part  of  the  plaintiff,  and 
the  defense  on  the  part  of  the  defendant,  which  in  courts  of  record  are 
drawn  out  with  great  exactness  and  perspicuity,  beginning  with  the 
declaration  on  the  part  of  the  plaintiff,  followed  by  the  plea  of  the 
defendant,  the  replication  of  the  plaintiff,  the  rejoinder  of  the  defendant, 
and  so  on  alternately  to  a  surrejoinder,  rebutter  and  surrebutter,  until 


ClIAP.  6.]  PROPER   PARTIES   TO   TUB   AtTION.  61 

an  issue  is  taken ;  that  is,  a  material  fact  is  affirmed  on  one  side  and 
denied  on  the  other, -which  fact  the  jury  are  called  OB  to  try.1  In  other 
words,  pleading  is  the  statement  in  a  logical  and  legal  form  of  the  facts 
which  constitute  the  plaintiff's  cause  of  action,  or  the  defendant's 
ground  of  defense ;  and  is  the  formal  mode  of  alleging  that  on  the 
record  which  would  be  the  support  or  defense  of  the  party,  in"  evidence.2 
And  the  object  of  pleading,  is  to  inform  the  court  whose  duty  it  is  to 
declare  the  law  arising  upon  those  facts,  and  of  apprising  the  opposite 
party  of  what  is  meant  to  be  proved,  in  order  to  give  him  an  opportu- 
nity to  answer  or  traverse  it.8  It  has  been  the  object  of  the  legislature 
in  establishing  justices'  courts,  to  dispense  with  technical  forms  and' 
pleadings,  and  to  require  causes  to  be  disposed  of  with  as  little  delay 
and  expense  as  possible.4  Henee  under  our  statutesno  written  plead- 
ings are  required.  It  will,  therefore,  be  unnecessary  to  tlevote  any 
greater  share  of  attention  to  the  subject  of  pleading,  than  the  require- 
ments of  proceedings  in  justices'  courts  actually  demand. 

Rev.  Stat.  319,  Sec.  28.  "When  the  parties  shall  appear  and  be 
ready  for  trial,  the  justice  shall  proceed  to  hear  and  examine  their 
respective  allegations  and  proofs,  and  'shall  thereupon  give  judgment 
against  the  party  who  shall  be  proved  to  be  indebted  to  the  other." 

The  allegations  of  the  respective  parties,  previous  to  the  proofs, 
which,  as  we  have  seen,  is  understood  to  be  the  pleadings  in  the  cause, 
may  or  may  not  be  reduced  to  writing.  When  reduced  to  writing,  they 
should  be  carefully  kept  and  filed  by  the  justice,  together  with  the 
papers  in  the  case ;  or  if  stated  orally,  the  substance  thereof  should 
be  briefly  noted  by  the  justice  on  his  docket,  so  ithat  if  subsequent 
occasion  should  require,  it  may  be  known  what  questions  were  tried  by 
the  justice.5 

Special  pleading,  by  which  is  meant  the  allegation  of  special  or  new 
matter,  as  distinguished  from  a  direct  denial  of  matter  previously 
alleged  on  the  opposite  side,  ought  not  to  Jpe  countenanced  in!  Justices' 
courts,  as  it  can  be  of  no  practical  avail,  and  tends  only  to  embarrass 
and  mislead  the  justice.6  ^.  * 


II.  OP  THE  PROPER  PARTIES  TO  THE  ACTION. 

1.  Plaintiffs. 

The  general  rule  is,  that  the  action  should  be  brought  in  the  name  of 
the  party  whose  legal  right  has  been  affected,  against  the  party  who 

(1)  Perm,  on  Sin.  Cau.  123.  (2)  1  Chit.  PI.  244.  (3)  Dougl.  159. 

(4)  Brcese,  96 ;  2  Oil.  393.  (5)  2  Gil.  393.  (6)  3  Caine,  272. 


62  PLEADINGS   IN   JUSTICES'    COURTS.  [PART  1, 

committed  the  injury,  or  by  or  against  his  personal  representatives.1 
In  general,  the  action  on  a  contract,  whether  express  or  implied,  or 
whether  by  parol  or  under  seal,  or  of  record,  must  be  brought  in  the 
name  of  the  party  in  whom  the  legal  interest  in  such  contract  is  vested.2 
It  is  a  general  rule,  that  in  case  of  partners  all  the  members  of  the  firm 
should  be  plaintiffs  in  an  action  upon  a  contract  made  with  the  firm  ; 
nor  can  any  private  arrangement  by  the  firm,  that  one  only  of  the  partr 
ners  shall  bring  the  action,  give  him  a  right  to  sue  alone.  In  case  of 
dormant  partners  not  privy  to  the  contract,  it  seems  that  the  other 
members  of  the  firm  may  omit  their  names  in  an  action.8  It  is  a  general 
rule  that  a  married  woman  cannot,  during  her  marriage,  maintain  an 
action  without  her  husband ;  either  upon  contracts  made  by  her  before 
or  after  her  marriage.4 

2.  Defendants. 

The  action  upon  an  express  contract,  whether  it  be  by  deed  or  merely 
in  writing,  or  by  parol,  must  in  general  be  brought  against  the  party 
who  made  it,  either  in  person  or  by  agent.5  On  implied  contracts, 
against  the  person  subject  to  the  legal  liability.6  A  contract  made  by 
an  agent,  as  such,  is  in  law  the  contract  of  the  principal.7  At  law  one 
partner  or  tenant  in  common  cannot  in  general  sue  his  copartner  or 
cotenant  in  an  action  arising  on  contract,  but  must  proceed  by  action 
of  account  or  bill  in  equity.8  It  seems  that  mere  dormant  partners, 
and  nominal  partners  having  no  interest,  need  not  necessarily  be  joined 
as  defendants.  And  in  case  of  infants  and  married  women  contracting 
jointly  with  other  persons  competent  to  contract,  it  is  a  ground  of  non- 
suit to  sue  them  with  the  persons  who  are  legally  responsible.9  In 
general  a  feme  covert  cannot  be  sued  alone  at  law  :  and  when  a  feme 
sole  who  has  entered  into  a  contract,  marries,  the  husband  and  wife 
must  in  general  be  jointly  sued.10 


III.    OF    PLEADINGS  .WHICH   USUALLY   OCCUR   IN  JUSTICES     COURTS. 

The  pleadings  which  usually  occur  in  justices'  courts,  are  the  declar- 
ation and  plea,  replication  and  demurrers.  The  declaration  is  the 
plaintiff's  complaint,  or  statement  of  his  cause  of  action ;  the  plea  i.< 

(1)  1  Chit.  PI.  2.  (2)  Id.  3.  (3)  Id.  13.  (4)  Id.  31.  (5)  8  East,  12. 

(6)  1  Chit.  PI.  38.  (7)  Id.  39.  (8)  Id.  44,  and  authorities  there  cited. 

(9)  Id.  49.  (10)  Id.  66. 


ClIAP.  6.]  OF   THE  DECLARATION.  63 

the  defendant's  answer  thereto  ;  in  which,  if  any  new  matter  is  set  up, 
beyond  that  mentioned,  or  contemplated  in  the  declaration,  as  a  justifi- 
cation, or  reason  why  the  plaintiff  should  not  recover,  the  plaintiff- 
replies  by  what  is  called  a  replication.  Thus,  in  an  action  of  trespass 
for  damage  done  by  cattle,  the  defendant  may  plead  the  general  issue, 
that  is,  deny  the  injury  complained  of,  or  might,  perhaps,  see  fit  to 
admit  the  trespass,  but  allege  by  special  plea  that  the  close  of  the 
plaintiff  was  not  protected  by  a  good  and  sufficient  fence,  and  therefore 
the  plaintiff  ought  to  be  barred  from  having  and  maintaining  his  said 
action,1  to  which  the  plaintiff  will  reply  that  the  close  was  sufficiently 
protected,  and  that  he  ought  not  to  be  barred,  &c.,  when  the  parties 
will  be  at  issue,  and  the  cause  ready  for  trial.  But  in  justices'  courts, 
the  most  proper  mode  of  proceeding,  is  for  the  defendant  to  plead  the 
general  issue  and  give  notice  of  set-off,  or  of  any  special  matter  that  he 
may  wish  to  show  on  trial  to  defeat  the  plaintiff's  claim.  The  demurrer 
may  come  from  either  party,  and  is  that  which  objects'  to  the  form  or 
substance  of  the  pleading  of  the  opposite  party,  and  insists  that  it  is 
not  sufficient  in  law  to  sustain  or  bar  the  action.2  The  other  parts  of 
pleadings,  as  they  seldom  occur  in  this  court,  will  be  only  occasionally 
noticed. 


IV.    OF  THE  DECLARATION. 

The  declaration  is  a  specification  of  the  circumstances  or  statement  of 
the  facts  which  constitute  the  plaintiff's  cause  of  action.8  Or  in  other 
words,  it  may  be  defined  to  be  an  amplification,  or  exposition  of  the 
original  process,  with  the  addition  of  the  time  when,  and  the  place 
where,  the  cause  of  action  arose,  and  of  all  necessary  circumstances^4 
The  general  requisites  of  a  declaration  are,  1st'  that  it  correspond  with 
the  process  ;  2nd,  that  it  contain  a  statement  of  all  the  facts  necessary 
in  point  of  law  to  sustain  the  action,  and  no  more ;  and  3rd,  that  these 
circumstances  be  set  forth  with  certainty  and  truth. 

1.  The  declaration  should  correspond  with  the  process  in  the  name  of 
the  parties ;  but  in  case  of  the  defendant  being  sued  by  a  wrong  name 
and  appearing  in  his  right  name,  the  plaintiff  may  declare  against  him 
by  the  name  in  which  he  appears,  stating  that  he  was  arrested  or  served 
with  process  by  the  other  ;  for,  by  appearing,  the  defendant  admits  him- 

(1)  See  5  Gil.  130;  13  111.  609.  (2)  3  Bl.  Com.  315.  (3)  1  Chit.  PI.  279. 

(4)  Gould  PI.  2;  3  Bl.  Com.  299. 


64  OF  THE  DECLARATION.  [PART  1, 

self  to  be  the  person  sued ;  the  variance  therefore  will  be  immaterial.1 
The  declaration  should  also  correspond  with  the  process  in  the  number  of 
the  plaintiffs ;  thus  if  the  process  be  in  the  name  of  one  plaintiff,  the 
declaration  cannot  be  made  in  the  name  of  two  or  more,  and  vice  versa, 
if  the  process  is  in  the  name  of  two  or  more,  the  declaration  cannot  be 
in  the  name  of  one.2 

By  Revised  Statutes,  318,  Sec.  25 :  "If  two  or  more  persons  shall 
be  sued  jointly  before  any  justice  of  the  peace,  and  all  of  such  defendants 
shall  have  had  notice  as  aforesaid  by  warrant  or  summons!  the  appear- 
ance of  any  one  of  the  said  defendants  at  the  time  of  trial,  shall  be 
sufficient  to  justify  the  said  justice  in  proceeding  as  if  all  were  present ; 
and  if  none  of  said  defendants  shall  appear  after  such  notice,  the  justice 
shall,  if  the  plaintiff's  demand  be  established  as  aforesaid,  proceed  as  in 
other  cases  of  default ;  and  in  either  of  the  aforesaid  cases  the  justice 
shall  not  divide  the  amount  of  the  debt  proved  among  the  defendants,  but 
shall  give  one  entire  judgment  for  the  whole  amount  proved  to  be  due, 
against  so  many  of  the  defendants  jointly,  as  shall  be  proved  to  be 
jointly  indebted  to  the  plaintiff.  But  if  it  shall  appear  to  the  justice 
that  any  two  or  more  of  the  defendants  are  severally  indebted  to  the 
plaintiff,  upon  separate  and  different  debts  or  causes  of  action,  or  upon 
several  or  different  promises  or  contracts,  such  plaintiff  shall  not  be 
allowed  to  bring  in  such  separate  claims;  nor  shall  the  plaintiff  be 
barred  by  the  determination  of  his  suit  against  such  joint  defendants, 
from  prosecuting  his  suit  against  the  respective  defendants  for  the 
recovery  of  such  separate  demands." 

But  in  actions  of  trespass  or  trover,  if  process  be  issued  against  two 
and  served  on  one  only,  the  plaintiff  may  declare  and  proceed  to  judg- 
ment against  him  alone  without  noticing  the  others.3  The  provisions  of 
the  preceding  section  of  the  statute  do  not  extend  to  cases  for  tort. 

2.  As  to  the  facts  necessary  to  be  stated,  it  may  suffice  to  say,  that 
the  declaration,  whether  written  or  verbal,  should  allege  all  the  circum- 
stances necessary  for  the  support  of  the  action,  and  contain  a  full  and 
regular  statement  of  the  injury  which  the  plaintiff  has  sustained ;  and 
the  time  and  place  and  other  circumstances ;  with  such  precision,  cer- 
tainty and  clearness,  that  the  defendant  knowing  what  he  is  called 
upon  to  answer,  may  be  able  to  plead  a  direct  and  unequivocal  plea, 
and  that  the  court  or  jury  may  understand  clearly  what  they  are  called 
upon  to  try.4 

(1)  1  Cowen,  37.  (2)  1  Chit.  PI.  283;  2  Scam.  508.  (3)  2  Johns.  l«6o. 

(4)  See  1  Chit.  PI.  286;  also  14  Johns.  369. 


CHAP.  6.]  OP  THE  DECLARATION.  65 

If  the  claim  or  demand  of  the  plaintiff  is  upon  book  account,  note 
of  hand  or  other  instrument,  it  will  be  sufficient  for  him  to  declare  gene- 
rally, producing  to  the  justice  his  books,  note  of  hand  or  other  instru- 
ment, as  the  case  may  be,  and  which  will  form  a  part  of  the  declaration, 
and  be  sufficiently  explicit  to  enable  the  opposite  party  to  plead  prop- 
erly, and  the  court  to  proceed  understandingly  with  the  cause,  and  will 
answer  the  most  stringent  requirement  in  justices'  court.1 

3.  These  circumstances  must  be  stated  with  certainty  and  truth. 
The  certainty  necessary  in  a  declaration  is,  to  a  certain  intent  in  gene- 
ral, which  should  pervade  the  whole  declaration,  and  is  particularly 
required  in  setting  forth :  First,  the  parties — it  must  be  stated  with 
certainty  who  are  the  parties  to  the  suit,  and  therefore  a  declaration  by 
or  against  "A.  B.  &  Co."  is  not  sufficient;  2  Secondly,  the  time — the 
declaration  must,  in  general,  state  a  time  when  every  material  or  tra- 
versable  fact  happened  ;  Thirdly,  the  place — it  is  a  general  rule  that 
the  place  of  every  traversable  fact  stated  in  the  pleadings  must  be  dis- 
tinctly alleged  ;  %&&  fourthly ,  other  circumstances  necessary  to  maintain 
the  action. 

In  actions  of  assumpsit,  and  especially  where  the  plaintiff's  claim  is 
comprised  in  several  items,  as  for  work  and  labor  done  and  performed, 
personal  property  sold  and  delivered,  and  the  like,  the  proper  manner 
of  proceeding  on  the  part  of  the  plaintiff,  on  coming  to  trial,  will  be  to 
embody  his  claim  in  the  form  of  a  bill,  or  formal  statement  of  the  sev- 
eral items,  commonly  called  a  bill  of  particulars,  in  the  following  form  : 

WAUKEOIAN,  ILL.,  SEPT.  1,  1855. 

A.  B., 

1855  To  C.  D.  DR. 

June  4,         To  5  bushels  of  wheat,  at  $2  per  bush.,  $10  QO 

July  25,         "  5  days'  labor  harvesting,  at  $2  a  day,  10  00 

August  1,       "1  second  hand  plow  (agreed)  8  00 

"  1  cow  20  00 


$48  00 

Which  bill  or  statement  so  made  out,  he  will  produce  and  file  with  the 
justice  upon  his  first  appearance  on  return  of  process,  and  thereupon 
state  to  the  justice  that  he  claims  to  recover  of  the  defendant  upon  said 
statement  for  the  several  items  therein  set  forth,  and  that  the  articles 
therein  mentioned,  were  furnished,  and  the  labor  performed  at  the 
request  of  the  defendant,  and  at  the  times  therein  set  forth,  and  that  the 

(1)  See  3  Caine,  187;  3  Wend.  492.  (2)  3  Caine,  170. 

4 


66  PLEADINGS  OP  THE  DEFENDANT.  [PART  1, 

defendant  had  promised  to  pay  for  the  same,  when  thereunto  requested ; 
that  such  request  had  been  made,  but  that  the  defendant  had  wholly 
neglected  and  refused  to  pay  the  same  or  any  part  thereof. 


V.  OF  PLEADINGS  ON  THE  PAKT  OF  THE  DEFENDANT. 

. 

1.    When  incumbent  on  the  defendant  to  plead. 

When  the  plaintiff  has  filed  his  declaration,  the  defendant  must  put 
in  his  excuse  or  plea.1  And  in  suits  before  justices  of  the  peace  it  is 
incumbent  on'  the  defendant  to  state  his  defense  particularly  before  the 
commencement  of  the  suit,  so  that  the  plaintiff  may  have  notice  of  it ; 
and  it  is  the  duty  of  the  justice  to  note  on  his  docket  the  substance  of 
the  defense  thus  stated,  that  it  may  be  known,  should  occasion  subse- 
quently require,  what  were  the  questions  tried  before  the  justice.2 

Pleas  are  of  two  sorts,  dilatory  pleas  and  pleas  to  the  action.  Dil- 
atory pleas  are  such  as  .tend  merely  to  delay  or  put  off  the  suit  by 
questioning  the  propriety  of  the  remedy,  rather  than  by  denying  the 
injury ;  pleas  to  the  action  are  such  as  dispute  the  very  cause  of  suit.3 

The  general  order  of  pleading  is, 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  disability  of  the  person. 

1.  Of  the  plaintiff". 

2.  Of  the  defendant. 

3.  To  the  process. 

1.  To  the  form. 

2.  To  the  action  of  the  process. 

4.  To  the  action  itself  in  bar  thereof. 

By  this  order  of  pleading  each  subsequent  plea  admits  that  there  is 
no  foundation  for  the  former ;  as  when  the  defendant  pleads  to  the 
person,  he  admits  the  jurisdiction  of  the  court,  and  where  he  pleads  to 
the  process,  he  admits  the  competency  of  the  plaintiff,  and  his  own 
responsibility ;  and  when  he  pleads  in  bar  of  the  action  he  admits  that 
there  is  no  foundation  for  any  dilatory  plea.4 

2.    Of  Pleas  to  the  Jurisdiction,  and  in  Abatement. 

Pleas  to  the  Jurisdiction. — The  general  rule  in  case  of  dilatory  pleas 
is,  that  if  the  party  does  not  avail  himself  of  them,  at  the  first  opportu- 

(1)  3  Bl.  Com.  301.  (2)  2  Gil.  389.  (3)  3  Bl.  Com.  301. 

(4)  1  Chit.  PI.  475;  Tidd  Pr.  572. 


CHAP.  6.]  PLEADINGS  OF  THE  DEFENDANT.  67 

nity,  he  waives  his  right  to  take  advantage  of  them.1  -But  objections 
to  the  jurisdiction  of  the  justice  may,  in  a  variety  of  instances,  be  taken 
under  the  general  issue,  or  at  any  stage  of  the  suit,  where  the  want  of 
jurisdiction  appears.  Such  are  all  those  cases  in  which  there  is  a  total 
want  of  jurisdiction,  so  that  the  proceedings  before  the  justice  are  wholly 
void,  for  it  is  a  familiar  doctrine  that  consent  of  parties  cannot  confer 
jurisdiction.2  As,  for  instance,  where  an  executor  or  administrator  is 
defendant,  where  the  amount  claimed  exceeds  twenty  dollars.8  And  so 
in  all  cases  not  within  the  jurisdiction  of  the  justice  by  statute  ;  yet  in 
all  these  cases  the  defendant  may  plead  formally  the  want  of  jurisdic- 
tion, should  he  choose  to  adopt  that  method. 

Pleas  in  Abatement. — Whenever  the  subject-matter  of  the  plea  or 
defense  is,  that  the  plaintiff  cannot  maintain  any  action  at  any  time  in 
respect  of  the  supposed  cause  of  action,  it  may,  and  usually  must  be 
pleaded  in  bar ;  but  matter  which  merely  defeats  the  present  proceed- 
ing, and  does  not  show  that  the  plaintiff  is  forever  concluded,  should 
in  general  be  pleaded  in  abatement.  The  leading  feature  of  a  plea  in 
abatement  is,  that  it  must  point  out  the  plaintiff's  mistake,  and  give 
him  a  better  writ.4 

Pleas  in  abatement  to  the  disability  of  the  plaintiff  are,  that  he  is 
not  in  existence  (being  only  a  fictitious  person  or  dead)  ;6  that  the 
plaintiff  is  an  infant,  and  has  commenced  the  suit  in  person  or  by 
attorney,  and  not  by  next  friend.6 

Where  a  married  woman  is  interested  in  the  subject-matter  of  the 
action,  and  might  join  with  the  husband,  but  sues  alone,  her  coverture 
must  be  pleaded  in  abatement.7 

Pleas  in  abatement  to  the  disability  of  the  defendant  are,  that  the 
defendant  is  a  married  woman,  and  is  sued  without  her  husband.8 
That  the  defendant  is  privileged  from  arrest  where  the  process  is  by 
warrant,  &c. 

Pleas  in  abatement  to  the  process  are  various :  As  misnomer  of  the 
plaintiff  or  defendant,  that  the  plaintiffs  or  defendants  suing  or  being 
sued,  as  husband  and  wife,  are  not  married,  that  one  of  the  plaintiffs 
or  defendants  was  fictitious  or  dead  at  the  time  of  the  commencement 
of  the  suit,  or  any  other  plea  for  want  of  proper  parties,  as  that  there 
are  other  joint  contractors,  &c.,  other  executors  or  administrators,  or 
Other  persons  not  joined,  who  ought  to  be  made  parties  to  the  suit.9 

(1)  1  Scam.  554 ;  Breese,  96.  (2)  12  111.  122.  (3)  12  111.  122. 

(4)  1  Chit.  PI.  481.  (5)  19  Johns.  308.  (6)  7  Johns.  373. 

(7)  1  Chit.  PI.  484.  (8)  1  Chit.  PI.  484 .  (9)1  Chit.  PI,  487. 


68  PLEADINGS  OF  THE  DEFENDANT.  [PART  1, 

Strictness  is  required  in  pleas  in  abatement.  They  are  dilatory 
pleas,  and  looked  upon  with  suspicion.  They  will  not  be  sustained  by 
any  intendment  in  their  favor.1 

If  the  plea  be  untrue  in  fact,  the  plaintiff  should  deny  it  by  replica- 
tion ;  or  if  it  be  insufficient  in  point  of  law,  he  may  demur.2  If  an 
.  issue  in  fact  be  joined  on  a  plea  in  abatement,  and  found  for  the  plaint- 
iff, the  judgment  is  final  that  the  plaintiff  recover ;  but  if  there  be 
judgment  in  favor  of  the  plaintiff,  on  demurrer  to  a  plea  in  abatement, 
or  replication  thereto,  the  judgment  is  that  the  defendant  answer  over, 
that,  is  plead  again.8  The  judgment  for  the  defendant  in  either  case  is 
that  the  writ  be  quashed,  or  if  it  be  a  temporary  disability,  that  the 
plaint  remain  without  day.4 

Revised  Statute,  43,  title,  "ABATEMENT,"  Sec.  1.  "No  plea  in 
abatement,  other  than  a  plea  to  the  jurisdiction  of  the  court,  or  when 
the  matters  relied  upon  to  establish  the  truth  of  such  plea  appear  of 
record,  shall  be  admitted  or  received  by  any  court  of  this  state,  unless 
the  party  offering  the  same,  or  some  other  person  for  him,  file  an 
affidavit  of  the  truth  thereof."5 

The  foregoing  provision,  although  no  doubt  intended  more  particu- 
larly for  courts  of  record,  will  apply  with  equal  force  and  effect  to 
justices  of  the  peace ;  in  which  case  a  mere  affidavit,  embracing  the 
facts  relied  on,  may  suffice  and  answer  the  requirements  of  the  statute. 
Yet  it  will  always  be  advisable  to  reduce  the  plea  to  writing  in  proper 
form,  and  subjoin  the  proper  affidavit  of  the  truth  thereof.  The  fol- 
lowing forms  are  therefore  given  as  applicable  to  justices'  court. 

Forms  of  Pleas  in  Abatement. 

No.  1. 

MISNOMER  ;  or  where  the  defendant  is  sued  by  a  wrong  name. 
In  Justice's  Court — Before  Joseph  L.  Williams,  Esquire,  Justice. 

Sued  by  the  name  of  C.  D. 

Ats. 
A B . 

E D sued  by  the  name  of  C D comes,  and  by 

way  of  plea  in  abatement  for  misnomer  says,  that  he  is  named  and 

(1)  13  Wend.  495.  (2)  1  Chit.  PI.  498.  (3)  Id.  500.  (4)  1  Scam.  319. 

(5)  See  also  Revised  Statutes,  233,  chap.  XL. ,  sees.  7  and  8  in  relation  to  actions  by  and 
against  partners  and  joint  payees  or  obligees  and  joint  payers  or  obligors. 


CHAP.  6.]  PLEADINGS    OP  THE   DEFENDANT.  69 

called  E D ,  and  by  that  name  ever  has  been  known  and 

called,  and  that  he  has  never  been  known  or  called  by  the  name  of 

C D ,  and  this  he  is  ready  to  verify.     Wherefore  he  prays 

judgment  of  the  said  process  and  that  the  same  may  be  quashed. 

STATE  OF  ILLINOIS,") 
Lake  COUNTY,      } 

E D ,  defendant  in  the  above  entitled  cause,  sued  by  the 

name  of  C D ,  being  duly  sworn  says,  that  the  above  plea  is 

true  in  substance  and  fact. 

Subscribed  and  sworn  to  before  ^ 

me,  this  —  dayof  —  A.D.,  18 — .  y  E D 

I 
JOSEPH  L.  WILLIAMS,  J.  P.      \ 

To  this  plea  the  plaintiff  may  reply  that  the  said  defendant  is  as  well 

known  by  the  name  of  C D as  by  the  name  of  E D . 

If  the  defendant  shows  by  proof  that  his  name  is  E D ,  the 

plaintiff  must  prove  that  he  is  as  well  known  by  the  name  of  C 

D ,  or  his  suit  will  abate.1 

No.  2. 

NONJOINDER — Where  all  the  parties  liable  are  not  sued. 
In  Justice's  Court — Before  E.  S.  Ingalls,  Esquire,  Justice. 

d T) 

\J  JLx 

Ats. 
A B 

The  said  C D comes,  and  by  way  of  plea  in  abatement  for 

nonjoinder,  says  that  his  supposed  liabilities  herein,  if  any  such  exist , 

were  made  by  the  said  defendant  jointly  with  one  E F ,  who 

is  still  living,  and  not  by  the  said  defendant  alone  ;  and  this  he  is  ready 
to  verify.  Wherefore  he  prays  judgment  of  the  said  process  herein, 
and  that  the  same  may  be  quashed.  C D . 

STATE  OF  ILLINOIS,  ") 
Lake  COUNTY,      ) 

C D ,  the  above  named  defendant,  being  duly  sworn,  says 

that  the  above  plea  is  true  in  substance  and  fact. 
Subscribed  and  sworn  to  before  ^ 

me,  this  —  dayof — ,  A.D.,  18 — .  (  C D • 

E.  S.  INGALLS,  /.  P.      J 

(1)  See  1  Chit.  PI.  498. 


70  PLEADINGS   OF   THE  DEFENDANT.  [PART  1, 

The  names  of  all  the  contracting  parties  omitted  must  be  disclosed 
by  the  plea,  with  an  averment  that  they  are  still  living.1 

No.  3. 

NONJOINDER — Where  all  the  persons  contracted  with  have  not  joined 

as  plaintiffs. 

(Commence  as  before,  No.  2.)  "  Comes,  and  by  way  of  plea  in 
abatement  for  nonjoinder  of  proper  plaintifis,  says  that  the  supposed 
liabilities  herein,  if  any  such  exist,  were  made  by  the  said  defendant 
with  the  said  A.  B.  and  one  K.  S.  jointly,  the  said  K.  S.  being  still 
living,  and  this  he  is  ready  to  verify,"  &c.  (  Conclude  as  before,  No.  2.) 

No.  4. 

COVERTURE — That  the  plaintiff  is  a  married  woman  suing  alone. 
(Commence  as  before,  No.  2.)  "Comes,  and  by  way  of  plea  in 
abatement  for  the  nonjoinder  of  proper  plaintiffs,  says  that  the  said 
plaintiff,  at  and  before  the  commencement  of  this  suit,  was  and  still  is 
married  to  one  E.  F.  then  and  yet  her  husband,  who  is  still  living," 
&c.  (  Conclude  as  before.) 

No.  5. 
COVERTURE — That  the  defendant  is  a  married  woman  and  is  sued 

without  her  husband. 

In  Justice's  Court — Before  Orlando  S.  Wright,  Esquire,  Justice. 
C.  F.  sued  by  the  name  of  C.  D. 

Ats. 
A- 

The  said  defendant,  to  wit :  C.  F.,  sued  by  the  name  of  C.  D., 
comes,  and  by  way  of  plea  in  abatement  for  the  nonjoinder  of  proper 
defendants,  says  that  at  the  time  of  the  commencement  of  this  suit,  she 
was  and  still  is  married  to  one  E.  F.,  who  is  still  living,  and  this  she 
is  ready  to  verify,  &c.  (Conclude  as  before,  No.  2.) 

No.  6. 
ANOTHER  ACTION  PENDING — That  another  action  is  pending  for  the 

same  cause. 

(Commence  as  before,  No.  2.)  "  Comes,  and  by  way  of  plea  in 
abatement  herein,  says  that  at  and  before  the  commencement  of  this 
suit,  another  action  was  and  still  is  pending  for  the  same  cause  (state 

(1)  3  Chit.  PI.  900,  note. 


CHAP.  6.]  PLEADINGS    OF   THE   DEFENDANT.  71 

where  the  suit  is  pending*)  and  between  the  same  parties,  and  this  he 
is  ready  to  verify,"  &c.     (Conclude  as  before,  No.  2.) 

It  will  be  understood,  that  all  these  several  pleas  must  be  verified  by 
affidavit.1 

3.   Of  Pleas  in  Bar. 

Pleas  in  bar  go  to  the  merits  of  the  case,  and  deny  that  the  plaintiff 
has  any  cause  of  action,  and  do  not,  like  pleas  in  abatement,  give  a 
better  writ.  They  either  conclude  the  plaintiff  by  matter  of  estoppel, 
which,  however,  rarely  occurs  in  a  plea ;  or  they  show  that  the  plaintiff 
never  had  any  cause  of  action  ;  or  admitting  that  he  had,  insist  that  it 
is  determined  by  some  subsequent  matter.2 

General  issue. — When  the  defendant  means  to  deny  the  whole  charge 
contained  in  the  declaration,  or  that  which  constitutes  the  gist  or  found- 
ation of  the  action,  he  should  plead  the  general  issue,  or  general  plea, 
being  that  which  traverses,  thwarts  and  denies  at  once  the  whole  declar- 
ation ;  without  offering  any  special  matter  whereby  to  evade  it ;  as  in 
assumpsit,  non-assumpsit,  that  he  made  no  such  promise,  &c.;  in  debt 
on  simple  contract,  or  on  judgment  before  a  justice  of  the  peace,  nil 
debet,  that  he  does  not  owe  the  debt ;  in  debt  on  speciality,  non  est 
factum,  that  the  instrument  is  not  his  deed  ;  in  debt  on  record,  nul  tiel 
record,  that  there  is  no  such  record ;  in  'trespass,  non  culpabilis,  not 
guilty.8 

The  following  Rides  will  be  observed  as  to  what  may  be  given  in  evi- 
dence under  the  general  issue,  and  what  pleaded  specially. 

In  Assumpsit. — Under  the  general  issue,  in  an  action  of  assumpsit, 
the  defendant  may  give  in  evidence  that  another  person  ought-  to  have 
been  made  coplaintiff;  that  at  the  time  the  supposed  contract  was 
entered  into,  the  defendant  was  an  infant,  a  lunatic,  or  drunk  by  con- 
trivance of  the  plaintiff,  or  a  married  woman,  or  under  duress ;  and 
the  want  of  sufficient  or  legal  consideration  for  the  contract.  So  a 
release  or  parol  discharge  before  breach,  or  an  alteration  in  the  terms 
of  the  contract,  or  non-performance  by  the  plaintiff  of  a  condition  pre- 
cedent, or  that  the  contract  was  performed  by  payment,  &c.,  or  that  it 
afterwards  became  illegal  or  impossible  to  be  performed,  may,  when 
they  constitute  a  sufficient  defense,  be  given  in  evidence  under  the  gen- 
eral issue.4  These  defenses  show  that  the  plaintiff  never  had  any  cause 

(1)  Upon  the  subject  of  pleas  in  abatement,  see  3  Chit.  PI.  895  to  905  and  authorities  cited. 
(2)  1  Chit.  PI.  503.  (3)  Tidd  Pr.  591;  3  Bl.  Com.  306.  (4)  1  Chit.  PI.  512. 


72  PLEADINGS   OF    THE   DEFENDANT.  '    [PART  1, 

of  action.1  So  the  defendant  may  show,  under  the  general  issue,  that 
he  offered  to  perform  his  part  of  the  contract,  but  was  prevented  by  the 
plaintiff.2 

There  are,  however,  some  defenses  which  in  assumpsit,  must  be  pleaded 
specially,  or  notice  thereof  given  with  the  general  issue,  as  tender,  set- 
off,  and  the  statute  of  limitations.3  And  so  of  a  former  recovery.4 
Also  the  defense  of  usury.6 

In  Debt. — In  the  action  of  debt  on  simple  contract  or  legal  liabili- 
ties, as  for  escape,  &c.  under  the  general  issue  nil  debet,  any  matter 
may  be  given  in  evidence  which  shows  that  nothing  was  due  at  that 
time,  as  payment,  performance,  release,  or  other  matter  in  discharge  of 
the  action.  The  defense  must  plead  specially,  or  give  notice  thereof, 
with  a  general  issue  of  the  same  matter  as  in  assumpsit,  as  tender,  set. 
off,  statute  of  limitations,  and  a  former  suit  or  recovery.6 

In  debt  on  bond  or  other  specialty  under  the  general  issue  non  est 
factum,  the  defendant  may  give  in  evidence  that  the  deed  was  delivered 
to  a  third  person  as  an  escrow,  or  that  it  was  void  at  common  law  ab 
initio,  or  that  it  was  obtained  by  fraud,  or  made  by  a  married  woman 
or  a  lunatic,  &c.,  or  that  it  became  void  after  it  was  made,  and  before 
the  commencement  of  the  action,  by  erasure,  alteration,  addition  or 
otherwise.  But  matter  which  shows  that  the  deed  was  merely  voidable 
on  account  of  infancy,  or  duress,  or  that  it  was  void  by  statute  in 
respect  to  usury,  gaming  or  the  like,  must  in  general  be  pleaded.7 

In  debt  on  record,  as  the  general  issue  nul  tiel  record,  merely  puts 
in  issue  the  existence  of  the  record  as  stated,  any  matter  in  discharge  of 
the  action,  must  be  pleaded ;  such  as  payment,  or  release,  or  that  the 
debt  was  levied  by  execution.8 

In  debt  on  statute,  nil  debet  is  the  proper  plea,  though  not  guilty, 
would  in  some  cases  suffice.  The  statute  of  limitations  may,  in  an 
action  by  a  common  informer,  be  given  in  evidence  under  the  general 
issue ;  but  a  former  recovery  by  another  person  cannot,  but  must  be 
pleaded  specially,  or  notice  given.9 

In  Trover. — In  this  action,  under  the  general  issue,  not  guilty,  it 
is  not  usual  to  plead  any  other  plea,  except  the  statute  of  limitations, 
and  a  release.  The  defendant,  however,  is  at  liberty  to  plead  specially 
any  thing  which  admits  the  property  in  the  plaintiff,  and  the  conversion, 

(1)  1  Chit.  PI.  513.    (2)  13  Johns.  66.  (3)  1  Chit.  PI.  615.  (4)  Id.  514,  note  g. 

(5)  1  Scam.  212;  Rev.  Stat.295,  sec.  4.        (6)  1  Chit.  PI.  517.  (7)  1  Chit.  PI.  519. 

(8)  Id.  521.  (9)  Id.  623. 


CHAP.  6.]  PLEADINGS    OF    THE   DEFENDANT.  73 

but  justifies  the  conversion.  The  statute  of  limitations  must  be  pleaded 
specially ;  and  it  seems  to  be  injudicious  to  plead  specially  a  former 
recovery,  or  verdict  in  a  prior  action.1  In  this  action,  the  defendant 
may,  under  the  general  issue,  give  in  evidence,  property  in  a  third 
person.2 

In  Trespass. — In  this  action,  •whether  it  be  trespass  to  personal  or 
real  property,  the  defendant  may  give  in  evidence  under  the  general 
issue,  any  matter  which  directly  controverts  the  truth  of  any  allegations 
which  the  plaintiff  makes,  and  is  bound  to  prove  in  the  first  instance  in 
support  of  his  case.  But  where  the  act  would  prima  facie  appear  to 
be  a  trespass,  any  matter  of  justification  or  excuse,  or  done  by  virtue 
of  a  warrant  or  authority,  must,  in  general,  be  specially  pleaded,  or 
notice  thereof  given  with  the  general  issue.8 

In  all  actions  of  trespass,  matter  in  discharge  of  the  action  must  be 
pleaded,  or  notice  thereof  given ;  as  accord  and  satisfaction,  arbitra- 
ment, release,  former  recovery,  and  the  statute  of  limitations.4 

4.      Of  Set-Off. 

Set-off  is  a  demand  which  a  defendant  makes  against  the  plaintiff  in 
the  suit  for  the  purpose  of  liquidating  the  whole  or  a  part  of  his  claim.5 
It  takes  place  only  in  actions  on  contracts  for  the  payment  of  money, 
as  assumpsit,  debt  and  covenant.  A  set-off  is  not  allowed  in  actions 
arising  ex  delicto,  as  upon  the  case,  trespass,  replevin  or  detinue,6  nor 
in  an  action  of  trover,7  unless  it  arise  out  of  the  same  subject  matter.8 
A  set-off  was  unknown  to  the  common  law,  according  to  which,  mutual 
debts  were  distinct  and  inextinguishable  except  by  actual  payment  or 
release.9  Set-off  is  therefore  a  matter  of  statutory  regulation. 

By  the  Rev.  Stat.  320,  Sec.  35,  it  is  enacted  that,  "In  all  suits 
which  shall  be  commenced  before  a  justice  of  the  peace,  each  party  shall 
bring  forward  all  his  or  her  demands  against  the  other,  existing  at  the 
time  of  the  commencement  of  the  suit,  which  are  of  such  a  nature  as 
to  be  consolidated,  and  which  do  not  exceed  one  hundred  dollars  when 
consolidated  into  one  action  or  defense ;  and  on  refusing  or  neglecting 
to  do  the  same,  shall  forever  be  debarred  from  the  privilege  of  suing  for 
any  such  debt  or  demand  ;"  and  by 


(1)  1  Chit.  PI.  537.    -          (2)  13  Johns.  276 ;  15  Johns.  207.  (3)  1  Chit.  PI.  539. 

(4)  1  Chit.  PI.  540.  (5)  2  BOUT.  L.  D.  513.  (6)  Bull.  N.  P.  181. 

(7)  12  111.  99.  (8)  14  111.  424.  (9)  1  Rawle  R.293;  Bab.  Set-off  1. 


74  PTEADINGS   OP   THE   DEFENDANT.  [PART  1, 

"  SEC.  34.  No  party  shall  be  permitted  to  introduce  at  the  trial, 
any  note,  bond,  debt,  or  other  claim  against  his  adversary,  which  he 
shall  have  acquired  after  the  commencement  of  the  suit." 

Where  actions  are  brought  before  a  justice  of  the  peace  on  two  notes, 
returnable  at  the  same  time,  which  if  consolidated,  would  exceed 
one  hundred  dollars,  a  judgment  on  the  first  note  is  not  a  bar  to  a  judg- 
ment on  the  second.  Each  note  constitutes  a  separate  demand.  If  a 
controversy  exist  as  to  the  amount  of  a  set-off,  a  party  is  not  bound  to 
give  credit  before  the  commencement  of  a  suit  for  the  exact  amount  to 
which  the  trial  may  show  the  party  entitled.1 

A  note  transferred  by  delivery  _merely,  cannot  be  set  off  by  the 
holder,  in  an  action  against  him  by  a  third  party.  The  holder  could 
not  sue  upon  the  note  in  his  own  name,  and  it  therefore  is  not  a  legal 
subsisting  cause  of  action  in  his  favor.2  Demands  to  be  set  off  must 
be  mutual,  and  exist  between  the  parties  to  the  record.3 

A  separate  demand  cannot  be  set  off  against  a  joint  demand ;  nor 
can  a  joint  demand  be  set  off  against  a  separate  debt,4  unless  upon  some 
prior  agreement.5 

Recoupment. — Mutual  demands  arising  out  of  the  same  subject-mat- 
ter, and  capable  of  being  balanced  against  each  other,  may  be  adjusted 
in  one  action,  by  recoupment.  It  is  not  necessary  that  the  opposing 
claims  should  be  of  the  same  character.  A  claim  originating  in  con- 
tract, may  be  set  up  against  one  founded  in  tort,  if  the  counter  claims 
arise  out  of  the  same  subject-matter,  and  are  susceptible  of  adjustment 
in  one  action ;  but  the  defendant  in  such  case  cannot,  as  in  set-off, 
recover  any  excess  in  his  favor ;  his  claim  is  used  in  mitigation  of 
damages  only.6 

In  an  action  of  assumpsit  for  the  recovery  of  the  price  of  an  article 
sold  at  a  stipulated  sum,  a  defendant  may  give  evidence  showing  the 
true  value  of  the  article  sold,  in  case  of  a  breach  of  warranty,  in 
reduction  of  the  amount  claimed,  as  well  in  cases  of  a  sale  with  war- 
ranty, as  in  cases  of  fraud;  such  evidence  being  allowed  to  avoid 
circuity  of  action,  and  to  prevent  further  litigation  upon  the  same 
matter7 

The  defendant  should  always,  at  the  time  of  joining  issue,  give  notice 
with  his  plea,  of  his  set-off,  or  he  will  in  strictness  thereafter  be  pre- 
cluded from  making  it  at  the  trial.8  In  case  of  recoupment  the  same 

(1)  11  111.  563.  (2)  15  111.  230.  (3)  4  Gil.  136;  11  111.  28,  644. 

(4)  11  111.  28.  (5)  2  Taunt.  170.  (6)  14  111.  424. 

(7)  4  Wend.  483;  8  Id.  109.      (8)  10  Johns.  108;  12  Id.  205. 


CHAP.  6.]  PLEADINGS   OF   THE   DEFENDANT.  75 

precaution  should  likewise  be  takfcn.1    But  this  will  generally  be  a 
matter  of  discretion  with  the  justice. 

5.    Of  Pleas,  Puis  Darrein  Continuance? 

Formerly  there  were  formal  adjournments  or  continuances  of  the  por- 
ceedings  in  a  suit,  for  certain  purposes,  from  one  term  to  another,  and 
during  the  interval  the  parties  were,  of  course,  out  of  court ;  and  when 
any  matter  arose  which  was  a  ground  of  defense,  since  the  last  continu- 
ance, the  defendant  was  allowed  to  plead  it,  which  allowance  was  an 
exception  to  the  general  rule  that  the  defendant  can  plead  but  one  plea 
of  one  kind  or  class.8 

If  any  matter  of  defense  has  arisen  in  a  suit,  after  an  issue  in  fact  or 
joinder  in  demurrer,  and  before  the  trial  of  the  cause,  it  may  be  pleaded 
by  the  defendant ;  as  that  the  plaintiff  has  given  him  a  release,  that  the 
defendant  has  paid  the  demand ;  and  in  short,  any  matter  which  if  it 
had  occurred  before  the  commencement  of  the  suit,  would  have  been  a 
good  defense.4 

A  plea^wt's  darrein  continuance  waives  all  previous  pleas,  and  if 
the  matter  of  that  plea  be  determined  against  the  defendant,  it  is  a 
confession  of  the  matter  in  issue.  The  plaintiff  must  nevertheless  prove 
his  demand,  the  same  as  if  no  plea  had  been  put  in,  in  the  cause.5 

It  seems  to  be  settled  that  this  plea  may,  in  all  cases,  be  received 
in  a  justice's  court,  where  it  could  properly  be  received  in  a  court 
of  record.6 

6.   Of  Pkadijig  title. 

In  case  of  trespass  by  cutting  timber  it  is  provided,  by  the  Rev.  Stat. 
525,  Sec.  2,  ."  That  penalties  herein  above  provided,  shall  be  recover- 
able, with  costs  of  suit,  either  by  action  of  debt,  in  the  name  and  for 
the  use  of  the  owner  or  owners  of  the  land,  or  by  action  qui  tarn  in  the 
name  of  any  person  who  will  first  sue  for  and  recover  the  same ;  the 
one-half  for  the  use  of  the  person  so  suing,  and  the  other  half  for  the 
use  of  the  owner  or  owners  of  the  land.  Provided,  That  if  in  any 
action  that  may  be  instituted  by  virtue  of  the  provisions  herein  con- 
tained, before  a  justice  of  the  peace,  the  defendant  shall  set  up  a  title 
to  the  land  on  which  the  tree  or  trees  are  alleged  to  have  been  cut, 
felled,  boxed,  bored  or  destroyed,  and  shall  forthwith  give  good  and 

(1)  22  Wend.  155.  (2)  An  old  French  word  signifying  since  the  last  continuance. 

(3)  2  Bouv.  L.  D.  389.  2  Bouv.  L.  D.  389.  (4)  1  Chit  PI.  697. 

(5)  14  Wend.  161 ;  10  Id.  675.       (6)  1  Hill,  69. 


76  PLEADINGS    OF    TIIK    DEFENDANT.  [PART  1, 

sufficient  security,  to  prosecute  his  claim  or  title  to  the  said  land  to 
effect,  within  one  year,  or  to  appear  and  defend  an  action  to  be  insti- 
tuted against  him  within  one  year,  by  virtue  of  the  provisions  herein 
contained  in  any  court  of  record  within  the  State,  having  cognizance 
thereof,  and  in  either  case  to  abide  by  and  satisfy  the  judgment  that 
may  be  given  in  such  court ;  then  the  said  justice  shall  proceeed  no 
further  in  the  said  cause,  but  shall  forthwith  dismiss  the  parties ;  and  it 
shall  be  the  duty  of  the  said  justice,  thereupon,  to  tax  the  bill  of  costs 
that  may  have  accrued  before  him  ;  and  so  soon  as  the  action  shall  be 
renewed  or  instituted  for  the  purpose  aforesaid,  to  transmit  the  said  bill, 
together  with  the  recognizance  to  be  taken  as  aforesaid  to  the  clerk  of 
the  court  in  which  such  action  shall  be  instituted  or  renewed  ;  which 
costs  so  taxed  and  transmitted,  shall  be  made  a  part  of  the  judgment  to 
be  rendered  as  aforesaid. 

"  SEC.  3.  If  the  said  recognizance  shall  be  forfeited  for  not  prose- 
cuting, as  aforesaid,  the  justice  shall  proceed  to  enter  judgment  against 
the  defendant  for  the  demand  of  the  plaintiff,  which  shall  be  taken  to 
be  confessed,  and  execution  shall  thereupon  issue  against  the  defendant 
and  his  security  or  securities ;  ahd  if  the  said  recognizance  shall  be 
forfeited  for  not  appearing  and  defending,  or  not  abiding  by  and  satis- 
fying the  judgment  that  shall  be  given  in  the  court  above,  the  party, 
for  whose  benefit  such  recognizance  was  taken,  may,  by  a  writ  or  writs 
of  scire  facias,  proceed  to  judgment  and  execution  thereon." 


Form  of  Recognizance  of  Defendant  when  Title  to  Land  is  set  up. 

STATE  OF  ILLINOIS,  ") 
COUNTY,       )  ss' 

Be  it  remembered  that  on  —  day  of  — ,  18 — ,  A.  B.  of in 

said  county,  and  C.  D.,  and  E.  F.,  of  the  same  place,  personally  came 
before  L.  M.,  Esquire,  a  Justice  of  the  Peace  of  the  .said  county, 
and  severally  and  respectively  acknowledge  themselves  to  be  indebted 
to  G.  H.,  that  is  to  say,  the  said  A.  B.  in  the  sum  of  ffty  dollars,  and 
the  said  C.  D.  and  E.  F.  in  the  sum  of  Jiffy  dollars,  each  to  be  levied 
of  their  respective  goods  and  chattels,  lands,  and  tenements,  to  the  use 
of  the  said  G.  H.,  if  the  said  A.  B.  shall  make  default  in  the  condition 
following : 

WHEREAS,  in  an  action  of  debt,  under  the  Revised  Statute,  chapter 
one  hundred  and  four,  title,   "Trespass,"  before  L.  M.,  Esquire,  a 

Justice  of  the  Peace  of  the  county  of ,  in  which  the  above  named 

G.  H.  is  plaintiff,   and  the  above  bounden  A.  B.  defendant,  the  said 


ClIAP.  6.]  OF  REPLICATION OF  DEMURRERS.  77 

A.  B.  sets  up  title  to  the  following  described  tract  of  land,  to  wit : 
(describe  the  land,}  upon  which  it  is  alleged  by  the  said  plaintiff  that 
the  said  defendant  has  cut  certain  trees,  (or  as  the  case  may  be.) 

Now  the  condition  of  this  recognizance  is  such,  that  if  the  said  A.  B. 
shall  prosecute  his  claim  or  title  to  the  said  land  to  effect  within  one 
year,  or  appear  and  defend  an  action  to  be  instituted  against  him  within 
one  year,  under  and  by  virtue  of  the  provisions  contained  in  the  aforesaid 
chapter  of  the  Revised  Statutes,  in  any  court  of  record  within  this  State 
having  cognizance  thereof,  and  in  either  case  will  abide  by  and  satisfy 
the  judgment  that  may  be  given  in  such  court,  then  this  recognizance 
to  be  void,  otherwise  to  remain  in  full  force. 

Taken,  subscribed  and  acknowl- ")  A.  B.     [SEAL.] 

edged,  the day  of 18 — ,  V  C.  D.     [SEAL.] 

before  me,  L.  M.,  J.  P.       (  E.  F.     [SEAL.] 


VI.    OF  THE  REPLICATION. 

The  replication  is  the  plaintiff's  answer  to  the  defendant's  plea.1 
When  the  plea  of  the  defendant  has  been  put  in,  if  it  does  not  amount 
to  an  issue  or  total  contradiction  of  the  declaration,  but  only  evades  it, 
the  plaintiff  may  plead  again,  and  reply  to  the  defendant's  plea,  by 
way  of  replication  ;  either  traversing  it,  that  is,  totally  denying  it ;  or 
he  may  allege  new  matter  in  contradiction  to  the  defendant's  plea.2 
Pleadings  before  justices  of  the  peace,  however,  will  seldom  extend 
beyond  i\x$  plea,  or  defendant's  answer  to  the  plaintiff's  declaration. 


VII.  OF  DEMURRERS. 

When  the  declaration,  plea  or  replication,  &c.,  appears  on  the  face  of 
it,  and  without  reference  to  extrinsic  matter,  to  be  defective  in  point  of 
law,  the  opposite  party  may  in  general  demur.  A  demurrer  has  been 
defined  to  be  a  declaration,  that  the  party  demurring  will  "go  no 
further,"  because  the  other  has  not  shown  sufficient  matter  against 
him.3  Demurrers  are  either  general  or  special ;  they  are  general  vflaen 
no  particular  cause  is  alleged  ;  and  special,  when  the  particular  imper- 
fection is  pointed  out,  and  insisted  upon  as  the  ground  of  demurrer.4 

(1)  2  BOUT.  L.  D.  439.          (2)  3B1.  Com.  310.         (3)  1  Chit.  PI.  700.          (4)  Id.  701. 


78  OJF  DEMURRERS.  [PART  1, 

In  practice  before  justices  of  the  peace,  it  is  apprehended  that  as  the 
pleadings  are  generally  put  in  orally,  the  party  demurring  to  a  plead- 
ing, will  usually  point  out  at  the  tune  the  defect  of  which  he  complains, 
so  that  demurrers  in  this  court  will  usually  be  special.  If  the  opposite 
party  be  satisfied  that  the  pleading  demurred  to  is  defective,  he  should 
apply  to  the  court  for  leave  to  amend,  which  should,  of  course,  be 
granted.  If,  however,  he  think  the  pleading  sufficient,  he  should  join 
in  demurrer,  by  insisting  that  the  pleading  demurred  to  is  sufficient  to 
sustain  or  bar  the  action.  This  would  form  what  is  called  an  issue  in 
law,  which  is  to  be  decided  by  the  court  upon  the  facts  alleged  by  the 
party  in  the  pleading  demurred  to,  for  a  demurrer  admits  the  facts 
alleged  in  the  pleading  to  be  true,  but  insists  that  they  are  not  sufficient 
in  law  to  sustain,  or  bar  the  action. 

If  the  justice  should  decide  in  favor  of  the  party  demurring,  he 
should,  of  course,  permit  the  opposite  party  to  amend  his  pleading  thus 
demurred  to  ;  and  on  the  other  hand,  if  he  should  decide  against  the 
party  demurring,  he  will  permit  him  to  withdraw  the  demurrer,  and 
answer  to  the  pleading  demurred  to.  If,  however,  no  application  be 
made  to  amend  or  answer  the  pleading,  the  judgment  will  be  final ;  if  in 
favor  of  the  defendant,  for  his  costs,  and  if  the  demurrer  be  to  a  declara- 
tion, or  other  pleading  of  the  plaintiff,  or  by  the  plaintiff  to  a  pleading 
of  the  defendant,  and  is  decided  in  the  plaintiff's  favor,  the  court  must 
proceed  and  ascertain  the  amount  of  his  demand,  and  render  judgment 
against  the  defendant  therefor.1 

(1)  See  1  Chit.  PL  700  to  709;  Gould'n  PL  Ch.  9. 


ClIAP.  7.]  ATTENDANCE   OF   WITNESSES.  79 


CHAPTER    VII. 

OF  WITNESSES,  COMPELLING  THE  ATTENDANCE  THEREOF, 
TAKING  DEPOSITIONS,  AND  OF  OATHS  AND  AFFIRMA- 
TIONS. 

I.  OF  COMPELLING  THE  ATTENDANCE  OF  WITNESSES  ;  AND  HEREIN, 

1.  Of  the  Subpoena  and  Service  thereof. 

2.  Of  the  fees  allowed  to  Witnesses. 

3.  Of  proving  Demand,  Discount,  or  Set-off  by  Adverse 

Party. 

4.  Of  Attachment  against  Defaulting  Witness. 
.  II.  OF  TAKING  DEPOSITIONS. 

III.  OF  OATHS  AND  AFFIRMATIONS. 

I.    OF  COMPELLING  THE  ATTENDANCE  OF  WITNESSES  ;  AND  HEREIN, 

1.    Of  the  Subpoena,  and  Service  thereof. 

Revised  Statutes,  320,  Sec.  36:  "  When  either  party  shall  require 
the  attendance  of  a  witness,  in  any  suit  pending  before  a  justice,  it 
shall  be  the  duty  of  the  justice  to  issue  a  subpoena  in  the  following 
form,  as  nearly  as  the  case  will  admit,  viz  : 


Form  of  Subpoena. 


STATE  OF  ILLINOIS, 
COUNTY, 


The  People  of  the  State  of  Illinois,  to  A.  B. : 

You  are  hereby  commanded  to  appear  before  me  at ,  on  the 

day  of ,  at o'clock, then  and  there  to  testify 

the  truth  in  a  matter  in  suit,  wherein  C.  D.  is  plaintiff,  and  E.  F. 
defendant.  And  this  you  arc  not  to  omit  under  the  penalty  of  the  law. 

Given  under  my  hand  and  seal,  this day  of ,  18 — . 

JOHN  DOE,  J.  P. 


80  ATTENDANCE   OF    WITNESSES.  [PART   1, 

Which  subpoena  may  be  served  by  a  constable,  or  any  other  person, 
by  reading  the  same  to  the  witness,  but  no  mileage  shall  be  allowed  to 
the  person  serving  the  same. 

"  SEC.  37.  In  all  cases  where  a  justice  of  the  peace  is  required  to 
issue  a  subpoena,  at  the  instance  of  either  party  to  a  suit,  it  shall  be 
his  duty  to  insert  the  names  of  four  witnesses  in  each  subpoena,  if  the 
party  demanding  the  same  shall  require  the  attendance  of  that  number. 
And  in  no  case  shall  a  justice  of  the  peace  be  permitted  to  charge  and 
receive  pay  for  any  subpoena  commanding  the  citation  of  a  less  number, 
where  as  many  as  four  shall  be  required  by  the  same  party  at  the  same 
time,  to  be  used  in  the  same  suit." 

It  not  unfrequently  happens  that  the  party  reqi»iring  the  attendance 
of  a  witness,  wishes  also  the  exhibition  in  court  of  certain  books  and 
papers  in  his  possession,  or  under  his  control,  in  which  case  a  subpoena 
duces  tecum  may  be  issued,  which  is  a  writ  or  process  of  the  same  kind 
as  the  ordinary  subpoena,  including  a  clause  requiring  the  witness  to 
bring  with  him  and  produce  to  the  court,  books,  papers,  &c.,  in  his 
hands,  tending  to  elucidate  the  matter  in  issue.1 

Form  of  Subpoena  duces  tecum. 


STATE  OF  ILLINOIS, 
Pike  COUNTY. 


ois,) 
<•      ) 
The  People  of  the  State  of  Illinois,  to  A.  B. : 

You  are  hereby  commanded  to  appear  before  me  at ,  on  the 

day  of ,  at o'clock, ,  then  and  there  to  testify 

the  truth  in  a  matter  in  suit,  wherein  C.  D.  is  plaintiff,  and  E.  F.  de- 
fendant, and  that  you  then  and  there  bring  with  you,  and  produce  at 
the  time  and  place  aforesaid,  to  be  used  as  evidence,  (here  describe  the 
document  required  particularly  by  date,  fyc.,  as  the  case  may  permit.} 
And  this  you  are  not  to  omit  under  the  penalty  of  the  law. 

Given  under  my  hand  and  seal,  this day  of ,  18 — . 

JOHN  DOE,  J.  P. 

2.    Of  the  Fees  allowed  to  Witnesses. 

Revised  Stat.  320,  Sec.  38.  "  Each  witness  so  summoned  shall  be 
entitled  to  fifty  cents  for  attending  on  each  trial,  to  be  taxed  with  the 
other  costs  of  suit,  and  paid  when  the  debt  and  costs  are  collected ;  but 
if  more  than  two  witnesses  shall  be  sworn  in  any  case  to  testify  to  one 

(1)  3  Bl.  Com.  383. 


CHAP.  7.]  ATTENDANCE   OP   WITNESSES.  81 

fact  on  the  same  side,  the  party  requiring  such  extra  witness  shall 
be  at  the  whole  expense  of  procuring  the  same  ;  but  no  such  fee  shall 
be  taxed  by  the  justice,  unless  claimed  by  the  witness  attending." 

By  this  section,  it  will  be  seen  that  witnesses  are  allowed  fees  only 
in  case  they  have  been  regularly  summoned  according  to  the  provisions 
of  section  36,  and  also  where  fees  are  claimed ;  which  may  be  done  at 
any  time  before  the  costs  are  taxed  up  by  the  justice.  Witnesses  who 
are  subpoenaed  and  attend  in  a  cause,  on  the  trial,  are  entitled  to  their 
fees  whether  they  are  sworn  or  not.1 

3.    Of  proving  Demand,  Discount,  or  Set-off  by  adverse  party. 

Rev.  Stat.  320,  Sec.  39.  "In  all  trials  before  justices  of  the 
peace,  when  either  party  may  not  have  a  witness  or  other  legal  testi- 
mony to  establish  his  or  her  demand,  discount,  or  set-off,  the  party 
claiming  such  demand,  discount,  or  set-off,  may  be  permitted  to  prove 
the  same  by  the  testimony  of  the  adverse  party.  And  if  such  adverse 
party  shall  not  appear  at  the  time  of  trial,  or  shall  refuse  to  be  sworn 
or  to  testify,  then  the  party  claiming  the  same  shall  be  permitted  to 
prove  his  or  her  demand,  discount,  or  set>off,  by  his  or  her  own  oath  ; 
provided,  that  such  party  claiming  the  benefit  of  his  own  oath  or  that 
of  the  adverse  party,  shall  first  make  oath  that  he  has  a  demand,  dis- 
count, or  set-off,  in  said  cause,  and  that  he  knows  of  no  witness  by 
whom  he  can  prove  the  same  except  by  his  own  oath,  or  that  of  the 
adverse  party ;  provided  further,  that  no  person  shall  be  allowed  to 
prove  his  demand,  discount,  or  set-off,  unless  the  adverse  party  be  pres- 
ent, or  shall  have  been  notified  thereof,  and  for  which  purpose  the 
justice  may  continue  the  cause  for  such  time  as  may  be  necessary." 

Form  of  Oath  to  be  Administered,  where  evidence  of  adverse  party 

is  desired. 

You  do  solemnly  swear  that  you  have  a  demand,  discount,  or  set-off, 
against  C.  D.  in  the  cause  now  in  hearing,  and  that  you  know  of  no 
witness  by  whom  you  can  prove  the  same,  except  by  your  own  oath,  or 
that  of  the  said  C.  D. 

"  Sec.  40.  When  any  plaintiff,  at  the  time  of  commencing  his 
suit,  shall  signify  his  desire  to  prove  his  debt  or  demand,  as  provided 
in  the  preceding  section,  and  shall  file  the  necessary  affidavit,  the  justice 
may  issue  his  summons  in  the  following  form  : 

(1)  3  Scam.  17. 


82  ATTENDANCE  OF  WITNESSES.  [PAST  1, 

"  STATE  OF  ILLINOIS, 


„  i-  set. 

COUNTY,      ) 


"  The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
"  GREETING  : 

"  You  are  commanded  to  summon  C.  D.  to  appear  before  me  at  my 

office  in ,  in  said  county,  on  the  day  of ,  18 — ,  at 

the  hour  of  —  o'clock,  — ,  to  answer  the  complaint  of  A.  B.  for  a  failure 
to  pay  him  a  certain  demand  not  exceeding  one  hundred  dollars,  and 
hereof  make  due  return  as  the  law  directs.  The  said  defendant  is 
hereby  also  notified  that  the  said  plaintiff  says  that  he  has  no  witness 
by  whom  to  prove  his  demand,  except  it  be  by  his  own  oath  or  the  oath 
of  the  said  defendant ;  and  unless  the  said  defendant  appear  at  the 
trial  of  said  complaint,  the  plaintiff  will  be  permitted  to  prove  his 
demand  by  his  own  oath,  as  by  law  is  directed  in  such  cases. 

"  Given  under  my  hand  and  seal  at  my  office  in ,  in  said 

county,  this day  of ,  A.D.  18 — . 

"  E F ,  J.  P.     [L.  s.] 

"  Sec.  41.  If  the  defendant  or  defendants  shall  not  appear  at  the 
tune  of  trial,  after  being  served  with  such  summons  according  to  law, 
and  no  sufficient  reason  be  assigned  to  the  justice  why  he  or  she  does 
not  appear,  then  the  plaintiff  shall  be  permitted  to  prove  his  or  her 
demand  by  his  or  her  own  oath,  without  giving  any  other  or  further 
notice  to  the  defendant  or  defendants." 

4.    Of  Attachment  against  Defaulting  Witness. 

By  the  Rev.  Stat.  322,  Sec.  48,  it  is  provided  that  in  all  cases 
where  a  witness  shall  be  duly  served  with  a  subprena,  and  shall  fail  to 
attend  at  the  trial,  conformably  thereto,  the  justice  shall  have  power 
to  issue  an  attachment,  directed  to  any  constable  of  the  county,  com- 
manding him  forthwith  to  bring  before  such  justice  the  body  of  such 
witness,  so  failing  to  attend  as  aforesaid,  to  show  cause  why  he  should 
not  be  fined  for  such  contempt ;  and  on  the  appearance  of  such  witness 
on  such  attachment,  it  shall  be  lawful  for  the  justice  of  the  peace  to 
fine  him  in  any  sum  not  less  than  one  dollar  nor  more  than  ten  dollars, 
or  wholly  discharge  him,  if  satisfactory  excuse  be  made. 

It  has  sometimes  been  held  necessary  that  the  cause  should  be  called 
on  for  trial,  the  jury  sworn  and  the  witness  called  to  testify,  before  an 
attachment  can  issue  against  him  for  default ;  but  the  better  opinion  is, 
that  the  witness  is  to  be  deemed  guilty  of  contempt  whenever  it  is  dis- 


CHAP.  7.]  TAKING  DEPOSITIONS.  83 

tinctly  shown  that  he  is  absent  from  court  with  intent  to  disobey  the 
writ  of  subpoena,  and  that  the  calling  of  him  in  court  is  of  no  other 
use  than  to  obtain  clear  evidence  of  his  having  neglected  to  appear,  but 
that  is  not  necessary,  if  it  can  be  clearly  shown  by  other  means  that  he  has 
disobeyed  the  order  of  court.  An  attachment  for  contempt  proceeds 
not  upon  the  ground  of  any  damage  sustained  by  an  individual,  but  is 
instituted  to  vindicate  the  dignity  of  the  court ;  and  it  is  said,  that  it 
must  be  a  perfectly  clear  case  to  call  for  the  exercise  of  this  extraordi- 
nary jurisdiction;  the  motion  for  an  attachment  should  therefore  be 
brought  forward  as  soon  as  possible ;  and  the  party  applying  must 
show  by  affidavit  or  otherwise  that  the  subpoena  was  seasonably  and 
personally  served  on  the  witness.1 

Form  of  Attachment  Against  a  Defaulting  Witness. 

STATE  OF  ILLINOIS,  > 
COUNTY,       )  st 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : 

We  command  you  to  attach  C.   D.,  if  he  may  be  found  in  your 
county,  and  bring  him  forthwith  before  E.  F.,  Esquire,  a  justice  of  the 

peace  in  and  for  the  said  county,  at  his  office  in ,  in  said  county, 

to  answer  unto  us  and  show  cause,  if  any  he  has,  why  he  should  not 
be  fined  for  contempt,  in  not  obeying  our  writ  of  subpoena,  command- 
ing him  to  appear  on  the  —  day  of  — ,  18 — ,  before  the  said  justice, 
to  testify  in  a  suit  then  and  there  depending,  to  be  tried  between  J.  K., 
plaintiff,  and  L.  M.,  defendant,  on  the  part  of  the  plaintiff,  (or  "defen- 
dant"} And  we  further  command  you  to  detain  him  in  your  custody 
until  he  shall  be  discharged  by  said  justice,  or  be  further  dealt  with 
according  to  law. 

Given  under  the  hand  and  seal  of  said  justice,  this  —  day  of , 

18—.  E.  F.,  J.  P.     [SEAL.] 

For  further  forms  of  proceeding  in  the  foregoing  case,  see,"  DOCKET 
ENTRIES." 


II.    OF  TAKING  DEPOSITIONS. 

A  Deposition,  is  the  testimony  of  a  witness  reduced  to  writing  in 

(1)  1  Greenl.  Ev.  §  319. 


84  TAKING   DEPOSITIONS.  [PART  1, 

due  form  of  law,  taken  by  virtue  of  a  commission  or  other  authority  of 
a  competent  tribunal.1 

Revised  Statutes,  319,  Sec.  32.  "  If  any  witness  residing  within 
the  county  wherein  a  suit  shall  be  pending  before  a  justice,  shall  be 
unable  to  attend  on  account  of  age,  sickness  or  other  cause,  it  shall  be 
lawful  for  the  justice  before  whom  such  suit  shall  be  pending,  or  some 
other  justice  of  the  county,  to  take  the  deposition  of  such  witness  in 
writing ;  and  the  justice  before  whom  the  suit  shall  be  pending,  shall 
adjourn  the  trial,  not  more  than  six  days,  for  that  purpose,  and  shall  give 
both  parties  notice  of  the  time  and  place  of  taking  such  deposition." 

Form  of  Notice  for  taking  deposition  of  Witness  residing  in  the 
County,  who  is  unable  to  attend  a  trial  on  account  of  Sickness  or 
other  cause. 

In  Justice's  Court. — Before  E.  F.,  Esquire,  Justice. 
A.  B. 

vs. 

C.  D. 

It  appearing  satisfactorily  to  the  undersigned,  a  justice  of  the  peace, 
of  the  county  of ,  that  Gr.  H.  of  said  county,  is  a  material  wit- 
ness for  the  plaintiff  in  the  above  entitled  suit  now  pending  before  him. 
And  that  on  account  of  his  age,  (or  sickness,  or  other  cause,}  he  is 
unable  to  attend  the  trial. 

You  are  therefore  notified,  that  on  the day  of ,  A.  D. 

18 — ,  at o'clock  in  the  forenoon,  the  deposition  of  the  said 

Gr.  H.  will  be  taken  by  me,  (or  "  by  K.  L.,  Esquire,  a  justice  of  the 
peace  of  said  county,"}  in  writing,  at  the  residence  of  the  said  witness, 

in ,  in  said  county,  to  be  read  in  evidence  on  the  trial  of  said 

cause. 

Dated  the day  of ,  A.  D.  18—. 

To  the  plaintiff  (or  "defendant.")  E.  F.,  J.  P. 

Form  of  Deposition  taken  pursuant  to  the  foregoing  Notice. 

In  Justice's  Court. — Before  E.  F.,  Esquire,  Justice. 
A.  B. 

vs. 

C.  D. 
Deposition  of  Gr.  H.,  aged  about years,  a  witness  in  the 

(1)  1  BOUT.  L.  D.  445. 


CHAP.  7.]  TAKING  DEPOSITIONS.  85 

above  entitled  suit,  taken  by  E.  F.,  Esquire,  a  justice  of  the  peace  of  the 
county  of ,  on  the day  of ,  18 — ,  at  the  resi- 
dence of  the  said  witness  in ,  in  said  county,  in  the  presence  of 

the  said  plaintiff  and  defendant,  on  the  part  of  said  plaintiff  (or  "  de- 
fendant."} 

County,  ss :  G.  H.,  being  duly  sworn,  deposes  and  says  as 

follows,  viz  :  (Here  insert  the  testimony  of  the  witness,  giving  his  own 
language  as  near  as  possible.} 

(Signed)  G.  H. 

STATE  OF  ILLINOIS, 


COUNTY,      T 


I,  the  subscriber,  a  justice  of  the  peace  of  the  said  county,  do  certify 
that  the  above  deposition  was  taken  by  me  at  the  time,  and  place  men- 
tioned in  the  caption  thereof;  that  the  said  witness  was  first  duly  sworn, 
and  that  the  said  deposition  was  carefully  read  to  the  witness  and  signed 
by  him. 

Dated  this day  of ,  18—.  •  E.  F., 

Justice  of  the  Peace. 

"  SEC.  33.  If  any  witness,  whose  testimony  shall  be  material  in  a 
suit  pending  before  a  justice,  shall  reside  out  of  the  county  wherein  such 
suit  shall  be  pending,  the  party  desiring  it,  may  take  his,  her  or  their 
deposition  or  depositions,  before  any  justice  of  the  peace  in  the  county 
in  which  such  witness  or  witnesses  reside  ;  and  the  depositions  taken  in 
conformity  thereto  may  be  given  in  evidence  in  said  suit,  if  it  shall  be 
made  to  appear  that  the  opposite  party  had  reasonable  notice  of  the 
time  and  place  of  taking  such  depositions." 

Form  of  Notice  to  take  the  Deposition  of  a  Witness  residing  out  of 
the  County  in  which  suit  is  pending. 

In  Justice's  Court. — Before  E.  F.,  Esquire,  Justice. 
A.  B. 


"  Sir  : — Take  notice  that  on  the day  of ,  A.  D.  18 — , 

between  the  hours  of  in  the  morning  and in  the  even- 
ing of  the  same  day,  and  continuing  from  day  to  day  if  necessary,  at 


86  TAKING   DEPOSITIONS.  [PART  1, 

the  house  of ,  in  the  county  of and  state  of  Illinois, 

and  before  J.  K.,  a  justice  of  the  peace  of  said  county,  I  shall  proceed 
to  take  the  deposition  of  L.  M.  of  said  county,  to  be  read  as  evidence 
in  the  above  entitled  cause. 

Dated  the day  of ,  18—. 

Yours,  &c., 

To  A.  B.,  C.  D. 

Plaintiff  in  the  above  entitled  suit. 

The  form  of-  deposition  heretofore  given  in  case  of  witness  being 
unable  to  attend  at  a  trial  on  account  of  sickness  or  other  cause,  can  be 
used  in  the  foregoing  instance  by  being  varied  to  suit  the  occasion. 

Rev.  Stat.  322,  Sec.  52.  "  In  all  cases  before  justices  of  the  peace, 
either  party  may  have  the  case  continued  any  reasonable  tune,  not 
exceeding  one  month,  for  the  purpose  of  taking  the  deposition  of  any 
non-resident  witness,  which  deposition  shall  be  taken  in  conformity  to 
the  manner  of  taking  and  returning  depositions  of  non-resident  witnesses 
in  the  circuit  courts  in  this  State." 

The  following  is  the  manner  of  taking  and  returning  depositions  of 
non-resident  witnesses  in  the  circuit  court  as  provided  by  the  Rev.  Stat. 
233,  Chap.  XL.,  Sec.  10.  "When  the  testimony  of  any  non-resident 
witness  or  witnesses  shall  be  necessary  in  any  civil  cause  depending  in 
any  court  of  law  or  equity  in  this  State,  it  shall  be  lawful  for  the  party 
wishing  to  use  the  same,  on  giving  to  the  adverse  party,  or  his  attorney, 
ten  days'  previous  notice,  together  with  a  copy  of  the  interrogatories 
intended  to  be  put  to  such  witness  or  witnesses,  to  sue  out  from  the 
proper  clerk's  office  a  dedimus  potestatum,  or  commission  under  the  seal 
of  the  court,  directed  to  any  number  of  persons  not  exceeding  three,  as 
commissioners,  or  to  any  judge  or  justice  of  the  peace  of  the  county  or 
city  in  which  such  witnesses  may  reside,  authorizing  and  requiring  him 
or  them  to  cause  such  witness  or  witnesses  to  come  before  him  or  them, 
at  such  time  and  place  as  he  or  they  may  designate,  and  appoint  and 
faithfully  to  take  his,  her,  or  their  deposition  or  depositions  upon  all 
such  interrogatories  as  may  be  inclosed  with  or  attached  to  said  com- 
mission, both  on  the  part  of  the  plaintiff  and  defendant,  and  none 
others,  and  to  certify  the  same  when  thus  taken,  together  with  the  said 
commission  and  interrogatories,  into  the  court  in  which  such  cause  shall 
be  depending,  with  the  least  possible  delay." 


CHAP.  7.]  TAKING  DEPOSITIONS.  87 

"Ssc.  12.  Previous  to  the  examination  of  any  witness  whose 
deposition  is  about  to  be  taken  as  aforesaid,  he  or  she  shall  be  sworn, 
(or  affirmed,^)  by  the  person  or  persons  authorized  to  take  the  same,  to 
testify  the  truth  in  relation  to  the  matter  in  controversy  so  far  as  he  or 
she  may  be  interrogated,  whereupon  the  said  commissioner  or  commis- 
sioners, judge,  justice  of  the  peace,  or  clerk,  (as  the  case  may  be,~)  shall 
proceed  to  examine  such  witness  upon  all  such  interrogatories  as  may 
be  inclosed  with  or  attached  to  any  such  commission  as  aforesaid,  and 
which  are  directed  to  be  put  to  such  witness,  or,  where  no  such  com- 
mission shall  be  necessary,  upon  all  such  interrogatories  as  may  be 
directed  to  be  put  by  either  party  litigant,  and  shall  cause  such  inter, 
rogatories,  together  with  the  answers  of  the  witness  thereto,  to  be 
reduced  to  writing  in  the  order  in  which  they  shall  be  proposed  and 
answered,  and  signed  by  such  witness  ;  after  which  it  shall  be  the  duty 
of  the  person  or  persons  taking  such  deposition,  to  annex  at  the  foot 
thereof  a  certificate  subscribed  by  himself  or  themselves,  stating  that  it 
was  sworn  to  and  signed  by  the  deponent,  and  the  time  and  place,  when 
and  where  the  same  was  taken  ;  and  every  such  deposition  when  thus 
taken  and  subscribed,  and  all  exhibits  produced  to  the  said  commissioner 
or  commissioners,  judge,  justice  of  the  peace,  or  clerk,  as  aforesaid,  or 
which  shall  be  proved  or  referred  to  by  any  witness,  together  with  the 
commission  and  interrogatories,  if  any,  shall  be  inclosed,  sealed  up,  and 
directed  to  the  clerk  of  the  court  in  which  the  action  shall  be  pending, 
with  the  names  of  the  parties  litigant  endorsed  thereon ;  Provided, 
That  when  any  deposition  shall  be  taken  as  aforesaid  by  any  judge  or 
justice  of  the  peace  out  of  this  State,  such  return  shall  be  accompanied 
by  a  certificate  of  his  official  character  under  the  great  seal  of  the  State, 
or  under  the  seal  of  the  proper  court  of  record  of  the  county  or  city 
wherein  such  deposition  shall  be  taken." 

No  authority  is  directly  conferred  by  the  foregoing  sections  upon 
justices  of  the  peace  to  appoint  commissioners  to  take  depositions.  A 
justice's  court  being  one  of  inferior  jurisdiction,  can  take  nothing  by 
implication.1  Hence  it  would  seem  that  a  justice  of  the  peace  had  not 
authority  under  the  statute  to  appoint  commissioners  for  taking  deposi- 
tions. It  is  therefore  proper  that  the  dedimus,  or  commission,  should 
be  directed  to  a  judge  or  justice  of  the  peace  upon  whom  authority  is 
conferred  by  our  statute  to  take  depositions  in  such  cases. 

(1)  1  Johns,  cases,  20,  228;  1  Scam.  237;  3  Id.  194;  4  Id.  88. 


88  TAKING   DEPOSITIONS.  [PART  1, 

Form  of  Notice  for  taking  out  Commission  to  examine  a  non-resi- 
dent Witness. 

In  Justice's  Court. — Before  Elislia  P.  Ferry,  Esquire,  Justice. 

A.  B. 

vs. 
C.  D. 

SIR  :— 

Take  notice  that  on  the  —  day  of  — ,  A.D.  18 — ,  at  —  o'clock,  in 
the  — noon,  I  will  attend  before  the  said  justice  at  his  office  in  Wauke- 
aan,  in  the  county  of  Lake,  for  the  purpose  of  suing  out  a  commission 
directed  to  William  Fair  child,  Esq.,  a  justice  of  the  peace  in  and  for 
the  county  of  Oneida,  in  the  State  of  New  York,  residing  in  the  town 
of  Augusta,  to  take  the  deposition  of  E.  F.,  a  resident  of  the  last  men- 
tioned place,  on  the  annexed  interrogatories,  to  be  read  in  evidence  on 
the  trial  of  this  cause  now  depending  before  the  said  justice,  when  and 
where  you  may  attend,  and  file  cross  interrogatories  if  you  think  proper. 

Dated  this  —  day  of  — ,  18—. 

Yours,  &c.  A.  B. 

To  C.  D. 

Form  of  Interrogatories  to  be  annexed  to  the  foregoing  Commission. 

Interrogatories  to  be  propounded  to  E.  F.,  of  the  town  of  Augusta, 
in  the  county  of  Oneida  and  State  of  New  York,  a  witness  to  be  pro- 
duced, sworn  and  examined,  in  a  certain  cause  now  depending  before 
Elisha  P.  Ferry,  Esquire,  a  justice  of  the  peace  of  the  county  of  Lake 
and  State  of  Illinois,  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant, 
on  the  part  and  behalf  of  the  said  plaintiff,  under  and  by  virtue  of 
the  commission  hereto  annexed. 

First. — What  is  your  age,  occupation  and  place  of  residence  ? 

Second. — Do  you  know  the  parties,  plaintiff  and  defendant,  in  the 
title  of  these  interrogatories  named,  or  either,  and  which  of  them, 
and  how  long  have  you  known  them  respectively  ? 

Third.— &c. 

Fourth. — Do  you  know  any  other  matter  or  thing  touching  the 
matter  in  question,  that  may  tend  to  the  benefit  or  advantage  of  the 
plaintiff? 

If  yea,  declare  the  same  as  fullyand  at  large,  as  if  you  had  been 
particularly  interrogated  thereto. 


CHAP.  7.]  TAKING  DEPOSITIONS.  89 

X 

Gross  Interrogatories. 

Interrogatories  to  be  propounded  to  the  said  E.  F.,  by  way  of  cross 
examination. 

{State  interrogatories  as  the  circumstances  of  the  case  require.) 

Form  of  Commission  to  take  Deposition  of  non-resident    Witness. 

STATE  OF  ILLINOIS,") 
Lake  COUNTY,       f  ss' 

The  People  of  the  State  of  Illinois  to  William  Fairchild,  Esq.,  a  Jus- 
tice of  the  Peace  of  the  county  of  Oneida,  in  the  State  of  New  York. 
Whereas,  it  appears  to  Elisha  P.  Ferry,  Esquire,  one  of  the  justices  of 
the  peace  in  and  for  the  county  of  Lake,  that  E.  F.,  of  the  town  of 
Augusta,  in  the  county  of  Oneida  and  State  of  New  York,  is  a  material 
witness  in  a  certain  cause  now  depending  before  the  said  justice,  between 
A.  B.,  plaintiff,  and  C.  D.,  defendant, 

Therefore  we,  in  confidence  of  your  prudence  and  fidelity,  do,  by 
these  presents,  appoint  you  to  examine  said  witness,  and  authorize  and 
employ  you  at  a  certain  day  and  place  to  be  by  you  for  that  purpose 
appointed,  to  examine  on  oath  the  said  witness,  on  all  the  interrogatories 
hereto  annexed,  to  be  taken  before  you,  and  cause  such  examination  to 
be  reduced  to  writing  and  signed  by  such  witness,  and  to  certify  and 
return  the  depositions  annexed  hereto  to  the  said  justice,  under  your 
seal,  with  the  names  of  the  parties  endorsed  thereon.  And  you  will 
return  also,  with  said  deposition,  a  certificate  of  your  official  character, 
under  the  seal  of  the  proper  court  of  record  in  the  county  for  which 
you  are  acting. 

In  witness  whereof,  the  said  justice  has  hereunto  set  his  hand  and 
seal,  the  —  day  of  — ,  A.D.  18—. 

ELISHA  P.  FERRY,  /.  P.     [SEAL.] 

Form  of  Deposition  taken  in  pursuance  of  the  foregoing  Commission. 

Deposition  of  E.  F.,  of  Oneida  county,  in  the  State  of  New  York, 
a  witness,  aged  —  years,  produced,  sworn,  and  examined  before  Wil- 
liam Fairchild,  Esquire,  a  justice  of  the  peace  in  and  for  the  county  and 
State  aforesaid,  on  the  —  day  of  — ,  18 — ,  at  the  office  of  the  said 
William  Fairchild,  Esq.,  in  the  town  of  Augusta,  in  said  county,  by 
virtue  of  a  commission  issued  by  Elisha  P.  Ferry,  a  justice  of  the 
peace  of  the  county  of  Lake,  in  the  State  of  Illinois,  to  me  directed  for 


90  OATHS    AND   AFFIRMATIONS.  [PART  1, 

the  examination  of  the  said  E.  F.,  a  witness  in  a  suit  depending  before 
the  said  justice,  between  A.  B.,  plaintiff,  and  C.  D.,  defendant. 

First. — To  the  first  interrogatory  this  deponent  says,  &c. 

Second. — To  the  second  interrogatory  this  deponent  says,  &c. 

(The  witness  must  make  answer  to  each  interrogatory  separately.  If 
there  be  any  cross  interrogatories,  the  witness  will  go  on  thus :) 

First. — To  the  first  cross  interrogatory  he  says,  &c. 

(Signed)  E.  F. 

Form  of  Certificate  to  be  attached  to  the  foregoing  Deposition. 
STATE  OF  NEW  YORK,  ) 

V   *?*? 

Oneida  COUNTY,        j 

I,  William  Fairchild,  a  justice  of  the  peace  of  said  county,  do 
certify  that  the  foregoing  deposition  was  taken  by  me  at  the  time  and 
pkce  mentioned  in  the  caption  thereof;  that  the  said  witness  was  first 
duly  sworn,  and  that  the  same  was  carefully  read  to  said  witness,  and 
signed  by  him. 

Dated  this  —  day  of ,  A.D.  18—. 

WILLIAM  FAIRCHILD,  J.  P. 

In  sending  out  a  commission  to  take  the  deposition  of  a  non-resident 
witness,  it  would  always  be  well  to  send  also  the  form  of  the  caption 
and  certificate,  as  a  guide  for  the  Commissioner. 


III.    OF    OATHS   AND   AFFIRMATIONS. 

An  Oath  is  a  declaration  made  according  to  law  before  a  competent 
tribunal  or  officer,  to  tell  the  truth  ;  or  it  is  the  act  of  one,  who,  when 
lawfully  required  to  tell  the  truth,  takes  God  to  witness  that  what  he 
says  is  true.  It  is  a  religious  act,  by  which  the  party  invokes  God  not 
only  to  witness  the  truth  and  sincerity  of  his  promise,  but  also  to 
avenge  his  imposture  or  violated  faith,  or,  in  other  words,  to  punish  his 
perjury,  if  he  shall  be  guilty  of  it.1  By  a  later  definition,  an  oath  has 
been  briefly  defined  to  be  :  "  An  outward  pledge,  given  by  the  juror," 
(or  person  taking  it)  "  that  his  attestation,  or  promise,  is  made  under 
an  immediate  sense  of  his  responsibility  to  God."2 

(1)  2  Bouv.  L.  D.  233;  1  Stark.  Ev.  23;  Seel  Greenl.  Ey.  Sec.  328,  where  a  somewhat  different 
definition  of  an  oath  has  been  given.  (2)  Tyler  on  oaths,  12, 13. 


CHAP.  7.]  OATHS  AND  AFFIRMATIONS.  91 

Oaths  are  taken  in  various  forms  ;  the  most  usual  is  upon  the  gospel, 
by  taking  the  book  in  the  hand  ;  the  words  commonly  in  use  are  : 

"  You  do  swear  that,"  &c.,  (and  concluding)  "  so  help  you  God," 
(and  then  kissing  the  book.*)1 

Another  form  is  by  the  witness,  or  party  promising,  holding  up  his 
right  hand  ;  the  words  to  be  repeated  by  the  officer,  in  this  case,  are  : 

"  You  do  swear  by  the  ever  living  God  that,"  &c.2 

Another  form  of  attestation,  is  by  affirmation,  which  is  defined  to 
be,  a  solemn  declaration  and  asseveration,  which  a  witness  makes  before 
an  officer  competent  to  administer  an  oath  in  a  like  case,  to  tell  the 
truth  as  if  he  had  been  sworn.8 

Kev.  Stat.  393,  Section  1.  "  Whenever  any  person  shall  be 
required  to  take  an  oath  before  he  enters  upon  the  discharge  of  any 
office,  place  or  business,  or  on  any  other  lawful  occasion,  and  such 
person  shall  declare  that  he  or  she  has  conscientious  scruples  about  the 
present  mode  of  administering  oaths  by  laying  the  hand  on  and  kissing 
the  gospels,  it  shall  be  lawful  for  any  person  empowered  to  administer 
the  oath,  to  administer  it  in  the  following  form,  to  wit :  The  person 
swearing  shall,  with  his  or  her  hand  uplifted,  swear  by  the  ever  living 
God,  and  shall  not  be  compelled  to  lay  the  hand  on  or  kiss  the 
gospels.  And  oaths  so  administered  shall  be  equally  effectual,  and 
subject  such  persons  to  the  like  pains  and  penalties  for  willful  and 
corrupt  perjury,  as  oaths  administered  in  the  usual  form. 

"  Sec.  2.  Whenever  any  person  required  to  take  or  subscribe 
an  oath,  as  aforesaid,  and  in  all  cases  where  an  oath  is  upon  any  lawful 
occasion  to  be  administered,  and  such  persons  shall  have  conscientious 
scruples  against  taking  an  oath,  he  or  she  shall  be  admitted,  instead  of 
taking  an  oath,  to  make  his  or  her  solemn  affirmation,  or  declaration, 
in  the  following  form,  to  wit :  '  You  do  solemnly,  sincerely,  and  truly 
declare  and  affirm,'  which  solemn  affirmation,  or  declaration,  shall  be 
equally  valid  as  if  such  person  had  taken  an  oath  in  the  usual  form, 
and  every  person  guilty  of  falsely  and  corruptly  declaring,  as  aforesaid, 
shall  incur  and  suffer  the  like  pains  and  penalties  as  are  or  shall  be 
inflicted  on  persons  convicted  of  willful  and  corrupt  perjury." 

Swearing  the  witness  by  the  uplifted  hand,  is  held  to  be  a  legal 
swearing,  independent  of  the  statute.4 

(1)  2  Bouv.  L.  D.  233.  (2)  2  Bouv.  L.  D.  233;  Rev.  Stat.  393,  Sec.  1. 

(3)  1  BOUT.  L.  D.  86;  1  Greenl.  Ev.  Sec.  371.  (4)  Breese,  28;  2  GU.  540. 


92  INCIDENTS  PREVIOUS  TO  TRIAL.  [PART  1, 


CHAPTER    VIII. 


OF  THE  TRIAL  AND  INCIDENTS  THERETO. 

I.  OF  INCIDENTS  OCCURRING  PREVIOUS  TO  THE  TRIAL. 

1.  Of  Continuance. 

2.  Of  Change  of  Venue,  or  removing  the  Cause  from  one 

Justice  to  another. 

II.  OF  TRIAL  IN  THE  ABSENCE  OF  THE  DEFENDANT. 
HI.  OF  TRIAL  BEFORE  THE  JUSTICE  WITHOUT  A  JURY. 
IV.  OF  TRIAL  BY  JURY. 

1.  When  the  Jury  shall  be  demanded  and  how  obtained. 

2.  Who  shall  be  competent  to  serve  as  Jurors. 

3.  Proceedings  against  defaulting  Jurors. 

4.  Of  Challenges. 

5.  Of  Swearing  the  Jury. 
V.  OF  PROCEEDINGS  ON  THE  TRIAL. 

VI.  OF  KEFERRING   THE   DIFFERENCE  BETWEEN  TRE  PARTIES  TO 
ARBITRATORS. 


I.     OF    INCIDENTS    OCCURRING    PREVIOUS    TO    THE    COMMENCEMENT    OF 

THE  TRIAL. 

1.   Of  Continuance. 

Revised  Statutes  318,  Sec.  27.  "Previous  to  the  commencement 
of  any  trial  before  a  justice  of  the  peace,  either  party  may  move  to 
have  such  trial  put  off  for  a  time  not  exceeding  ten  days,  upon 
making  proof,  either  upon  his  own  oath  or  that  of  a  credible  witness, 
that  the  said  party  cannot  safely  proceed  to  trial,  on  account  of  the 
absence  of  a  material  witness,  or  on  account  of  any  other  cause  or  disa- 


ClIAP.  8.]  INCIDENTS  PREVIOUS  TO  TRIAL.  93 

bility,  which  would  prevent  them  from  obtaining  justice  at  such  trial ; 
and  if  the  justice  be  satisfied  that  the  party  so  applying  cannot  safely 
proceed  to  trial,  and  also  that  the  party  so  applying  has  used  due  dili- 
gence to  be  ready  at  the  tune  of  trial  first  appointed,  and  that  his  not 
being  ready  is  not  the  effect  of  such  party's  own  neglect  or  inattention, 
then  the  said  justice  shall  order  the  trial  of  said  cause  to  be  deferred  to 
another  day  and  hour  within  ten  days,  to  be  by  him  appointed  ;  and  the 
party  praying  such  continuance  shall  pay  all  the  costs  occasioned 
thereby  :  Provided,  the  justice  may  at  any  tune  continue  any  case 
without  oath,  if  the  parties  consent ;  or  if  but  one  party  be  present  and 
shall  consent,  or  if  he  shall  deem  it  essential  to  justice  so  to  do  for  any 
good  cause  shown." 

Form  of  Oath  to  be  administered  by  the  Justice  upon  application  for 
the  continuance  of  a  Cause. 

You  do  solemnly  swear  that  you  will  true  answers  make  to  such 
questions  as  may  be  put  to  you,  touching  your  present  application  for 
continuance  of  the  cause  now  pending,  in  which  you  are  plaintiff  and 
C.  D.  is  defendant,  (or  as  the  case  may  be},  so  help  you  God. 

The  justice  will  then  interrogate  the  party,  as  to  the  grounds  of  his 
application  for  continuance,  or  may  allow  the  opposite  party  to  do  so, 
as  he  may  think  proper. 

A  suit  may  also  be  continued,  or  adjourned  for  a  time  not  more 
than  six  days,  for  the  purpose  of  taking  the  deposition  of  a  witness 
residing  in  the  county,  who  is  unable  to  attend  a  trial  on  account  of  age, 
sickness  or  other  cause.1 

A  cause  may  also  be  continued  by  the  justice  for  such  a  time  as  may 
be  necessary,  for  the  purpose  of  notifying  the  adverse  party,  who  may 
not  be  present,  that  the  party  applying  has  a  demand,  discount  or  set- 
off,  and  that  he  knows  of  no  witness  by  whom  he  can  prove  the  same, 
except  by  his  own  oath  or  that  of  the  adverse  party.2 

A  case  may  likewise  be  continued  any  reasonable  time,  not  exceeding 
one  month,  for  the  purpose  of  taking  the  deposition  of  any  non-resident 
witness.8 

When  a  jury  is  demanded  by  either  party,  the  justice  may,  if  neces- 
sary, adjourn  the  cause  to  any  time,  not  exceeding  three  days,  for  the 
purpose  of  empanneling  a  jury.4 

(1)  Rev.  Stat.  319,  Sec.  32.  (2)  Rev.  Stat.  320,  Sec.  40.  (3)  Rev.  Stat.  322,  Sec.  52. 

(4)  Rev.  Stat.  321,  Sec.  44. 


94  INCIDENTS  PREVIOUS  TO  TRIAL.  [PART  1, 

2.    Of  Change  of   Venue,  or  removing  the  Suit  from  one  Justice  to 

another. 

Revised  Statutes,  322,  Sec.  51.  "Previous  to  the  commence- 
ment of  any  trial  before  a  justice  of  the  peace,  the  defendant,  or 
his  or  her  agent,  may  make  oath  that  it  is  the  belief  of  such  deponent 
that  the  defendant  cannot  have  an  impartial  trial  before  such  justice ; 
whereupon  it  shall  be  the  duty  of  the  justice  immediately  to  transmit 
all  the  papers  and  documents  belonging  to  the  suit,  to  the  nearest  justice 
of  the  peace,  who  shall  proceed  as  if  the  said  suit  had  been  instituted 
before  him." 

Form  of  Oath  to  be  administered  by  the  Justice  upon  application  for 
Change  of  Venue. 

You  do  solemnly  swear  that  it  is  your  belief  that  you  cannot  have  an 
impartial  trial  before  me,  in  the  case  now  pending,  in  which  you  are 
defendant,  and  A.  B.  is  plaintiff,  (or  in  case  the  oath  is  made  by  the 
agent,  then  say,  "  in  the  case  now  pending,  in  which  A.  B.  is  plaintiff 
and  C.  D.  is  defendant.") 

In  case  of  change  of  venue,  as  aforesaid,  the  justice  will  copy  from 
his  docket  the  proceedings  of  the  cause  as  far  as  the  same  has  progressed 
before  him,  adding  thereto  a  certificate  in  the  following  form : 

Form  of  Certificate  by  the  Justice  to  accompany  the  Papers  and 
Documents  on  Change  of  Venue. 

STATE  OF  ILLINOIS, 


COUNTY,      f 


I.,  E.  F.,  a  justice  of  the  peace  in  and  for  the  said  county,  do  hereby 
certify  that  the  foregoing  is  a  true  copy  of  the  proceedings  in  the  cause 
therein  entitled  had  before  me,  and  that  herewith  enclosed  are  all  the 
papers  and  documents  belonging  to  the  said  suit. 

Witness  my  hand  this  —  day  of — ,  A.  D.,  18 — . 

E.  F.,  /.  P. 

Upon  granting  a  change  of  venue,  all  the  papers  pertaining  to  the 
cause,  should  be  properly  enclosed  by  the  justice  in  a  wrapper  or  envel- 
ope, and  addressed  to  the  nearest  justice  of  the  peace,  and  it  will  be  his 
duty  it  is  to  see  that  they  are  safely  transmitted,  with  as  little  delay  as 
possible.  The  papers  are  usually  entrusted  by  the  justice,  with  the 
constable,  if  in  attendance,  or  the  plaintiff  in  the  suit. 

The  consent  of  parties  to  a  change  of  venue,  without  fulfilling  any  of 


CHAP.  8.]  TRIAL  WITHOUT  A  JURY.  95 

the  requirements  of  the  statute,  is  proper.1  A  party  who  has  obtained 
a  change  of  venue,  cannot  object  to  a  trial  in  the  court  to  which  he  has 
caused  the  case  to  be  removed,  if  enough  appears  to  give  the  court 
jurisdiction.2 


II.  OF  TRIAL  IN  THE  ABSENCE  OF  THE  DEFENDANT. 

Revised  Statutes,  318,  Sec.  23.  "If  the  defendant  shall  not 
appear  at  the  time  of  trial,  after  giving  bail  as  aforesaid,  or  after 
being  served  with  a  summons,  as  described  in  the  twenty-first  section  of 
this  chapter,  and  no  sufficient  reason  be  assigned  to  the  justice,  why  he 
or  she  does  not  appear,  then  the  justice  shall  proceed  to  hear  and  deter- 
mine the  cause,  in  the  absence  of  said  defendant,  but  shall  not  give 
judgment  in  favor  of  the  plaintiff,  unless  the  said  plaintiff  shall  fully 
prove  his  demand  in  the  same  manner  as  if  the  defendant  had  been 
present  and  denied  the  same." 

The  omission  of  the  defendant  to  appear  and  plead,  is  not  considered 
as  an  admission  of  the  plaintiff's  demand,  but  he  must  establish  it  by 
testimony  in  the  same  manner  as  though  an  issue  had  been  joined. 

The  justice  is  bound  to  hear  the  merits  in  all  cases  before  judgment 
against  the  defendant.  Strictly  speaking  there  is  no  such  a  thing 
before  a  justice  of  the  peace  as  a  judgment  by  default,  but  always  a  trial 
or  a  hearing  in  the  nature  of  a  trial.3 


III.  OF  TRIAL  BEFORE  THE  JUSTICE,  WITHOUT  A  JURY. 

Rev.  Stat.  319,  Sec.  28.  "When  the  parties  shall  appear  and 
be  ready  for  trial,  the  justice  shall  proceed  to  hear  and  examine 
their  respective  allegations  and  proofs,  and  shall  thereon  give  judg- 
ment against  the  party  who  shall  be  proved  to  be  indebted  to  the  other, 
for  so  much  money  in  dollars  and  cents  as  shall  appear  to  be  due,  with 
costs  of  suit ;  but  if  neither  party  shall  appear  to  be  indebted  to  the 
other,  then  the  judgment  shall  be  against  the  plaintiff  for  the  costs  of 
suit  only ;  and  if  such  judgment  be  rendered  upon  any  note  or  bond, 
or  for  a  balance  due  upon  a  settled  account,  the  justice  shall  allow  in- 

(1)  3  Scam.  354.  (2)  13  111.  76.  (3)  8  Cowen,  133;    10  Johns.  106. 


96  TRIAL   BY   JURY.  [PART  1. 

tcrest  from  the  time  when  the  same  became  due,  and  include  the  same 
in  the  said  judgment ;  and  in  all  cases  the  judgment  shall  bear  interest 
at  the  rate  of  six  per  cent,  per  annum  until  paid." 

A  justice  of  the  peace  must  not  decide  on  his  own  previous  knowl- 
edge of  facts,  but  only  on  evidence  adduced  before  him.  He  must  de- 
cide upon  evidence  produced  in  court.1 

In  trials  before  a  justice  alone,  if  the  party  means  to  submit  to  a 
non-suit,  he  must  do  so  before  the  cause  is  finally  submitted  for  advise- 
ment, or  the  judgment  will  be  a  bar  to  a  new  action.2 

In  an  action  against  several,  for  a  tort,  where  the  trial  is  before  a 
justice,  without  a  jury,  he  may,  when  the  plaintiff  closes  his  proof,  dis- 
charge a  defendant  against  whom  no  evidence  has  been  given.  No 
judgment,  however,  should  be  entered  under  such  circumstances,  until 
the  final  disposition  of  the  cause.8  Most  of  the  rules  which  govern 
proceedings  in  justices'  courts  in  trials  of  issue  of  fact,  are  applicable  as 
well  to  trials  by  jury,  as  to  trials  before  the  justice,  without  a  jury. 
Hence,  the  further  general  rules  which  govern  proceedings  before  jus- 
tices of  the  peace  in  trials  of  issue  of  fact,  will  be  found  under  the  fol- 
lowing head,  and  .to  which  reference  will  generally  be  had. 


IV.    OF  TRIAL  BY  JURY. 

1.    When  the  jury  shall  be  demanded,  and  how  obtained. 

Kevised  Statutes  321,  Sec.  44.  "  At  any  tune  before  judgment 
is  given  in  any  suit  before  a  justice,  either  party  may  demand  to 
have  the  cause  tried  by  a  jury,  provided  the  matter  in  controversy  ex- 
ceed twenty  dollars  ;  whereupon,  it  shall  be  the  duty  of  the  justice  to 
issue  his  writ,  directed  to  any  constable,  commanding  him  to  summon  a 
jury  of  six  men,  or  twelve,  if  a  less  number  be  objected  to  ;  and  the 
said  jury  shall  be  empanneled  as  soon  as  may  be,  the  justice  adjourning 
the  cause,  if  necessary,  to  any  time  not  exceeding  three  days,  for  that 
purpose.  The  jury,  when  empanneled,  shall  be  sworn  by  the  justice  to 
try  the  case  according  to  the  evidence,  and  the  justice  shall  enter  judg- 
ment upon  their  verdict,  according  to  the  finding  thereof." 

(1)  2  Johns.  189.  (2)  11  Johns.  457.  (3)  3  Hill,  104. 


CHAP.  8.]  TRIAL  BY  JURY.  97 

"  Sec.  45.  The  following  shall  be  the  form  of  the  writ  for  summon- 
ing the  jurors,  viz  : 
STATE  OP  ILLINOIS, 


COUNTY 


)is,  ) 


The  People  of  the  State  of  Illinois  to  any  constable  of  said  County, 
GREETING  : — 

We  command  you  to  summon lawful  men  of  your  county  to 

appear  before  me  at ,  on  the day  of ,  18 — ,  who  are 

not  of  kin  to ,  plaintiff,  or  to ,  defendant,  to  make  a  jury  be- 
tween said  parties  in  a  plea  of ,  because  as  well  the  said  plain- 
tiff as  the  said  defendant  have  put  themselves  upon  the  country  for  trial, 
and  have  you  then  there  the  names  of  the  jury  and  this  writ. 

Witness  my  hand  and  seal  this day  of ;  18 — . 

JOHN  DOE,  J.  P." 

"  Sec.  47.  No  justice  of  the  peace  shall  order  a  trial  by  jury  with- 
out the  consent  of  all  parties,  unless  such  jury  be  demanded  before  the 
hearing  of  any  evidence  in  the  case,  nor  unless  the  party  demanding 
such  jury  shall  first  pay  the  fees  to  which  such  are  by  law  entitled." 

Upon  the  return  of  the  venire  by  the  constable,  with  the  panel  of 
jurors,  the  parties  being  ready  for  trial,  the  justice  will  proceed  to  call 
the  names  of  the  jurors,  for  the  purpose  of  ascertaining  that  the  num- 
ber required  have  been  summoned,  and  all  the  persons  so  summoned 
are  in  attendance.  The  justice  should  then  enter  upon  his  docket  the 
names  of  those  who  have  been  summoned,  and  the  names  of  those  who 
appeared,  and  those  who  did  not  appear. 

"  Sec.  49.  If  any  juror  summoned  as  aforesaid  shall  be  interested 
in  the  event  of  the  suit,  or  of  kin  to  either  party,  or  shall  have  ex- 
pressed his  opinion  on  the  matter  about  to  be  tried,  or  shall  for  any 
other  cause,  to  be  judged  of  by  the  justice,  be  considered  as  a  partial  or 
improper  juror  in  that  case,  the  justice  shall  discharge  such  juror  ;  and 
when,  by  such  discharge,  or  the  failure  of  any  juror  to  attend,  the  jury 
shall  not  be  complete,  the  justice  shall  direct  the  constable  to  summon 
as  many  persons  as  shall  be  required  to  complete  such  jury  instantly 
from  among  the  bystanders  or  other  persons  in  his  bailiwick,  which  sum- 
mons shall  be  verbal ;  and  the  persons  so  summoned  shall  be  bound  to 
serve  on  such  jury,  and  on  refusal  or  failure  to  do  so,  may  be  attached 
and  fined  for  contempt,  as  aforesaid."  1 

(1)  Jurors  so  summoned  are  called  talesmen,  from  a  latin  word  to  denote  persons  of  like 
qualifications. 


98  TRIAL   BY   JURY.  [PART  1, 

2.    Who  shall  be  competent  to  serve  as  Jurors. 

Rev.  Stat.  308,  Sec.  1.  "All  free  white  male  taxable  inhabitants 
in  any  of  the  counties  in  this  state,  being  natural  born  citizens  of 
the  United  States,  or  naturalized  according  to  the  constitution  and  laws 
of  the  United  States,  and  of  this  state,  between  the  ages  of  twenty- 
one  and  sixty  years,  not  being  judges  of  the  supreme  or  circuit  court, 
county  commissioners,  judges  of  probate,  clerks  of  the  circuit  or  county 
commissioners'  court,  sheriffs,  coroners,  postmasters,  licensed  attorneys, 
overseers  of  the  high  way,  or  occupiers  of  mills,  ferries,  toll  bridges  or 
turnpike-roads,  being  of  sound  mind  and  discretion,  and  not  subject  to 
any  bodily  infirmity  amounting  to  a  disability,  shall  be  considered  and 
deemed  as  competent  persons,  {except  in  cases  ichere  legal  disabilities 
may  be  imposed  for  the  commission  of  some  criminal  offence,}  to  serve 
on  all  grand  and  petit  juries  in  and  for  the  bodies  of  their  counties  re- 
spectively." 

By  the  act  to  establish  and  maintain  a  system  of  free  schools,  ap- 
proved February  15,  1855,  school  commissioners,  trustees  of  schools, 
school  directors,  and  all  other  school  officers,  are  exempt  from  serving 
on  juries. 

3.  Proceedings  against  defaulting  Jurors. 

In  all  cases  where  a  person  has  been  summoned  as  a  juror,  to  try 
any  cause  before  a  justice  of  the  peace,  and  shall  fail  to  attend  at  the 
time  and  place  appointed  in  such  summons,  the  justice  has  power  to 
issue  an  attachment,  directed  to  any  constable  of  the  county,  command- 
ing him  forthwith  to  bring  before  such  justice,  the  body  of  such  juror  so 
failing  to  attend  as  aforesaid,  to  show  cause  why  he  should  not  be  fined 
for  such  contempt ;  and  on  the  appearance  of  such  juror  on  such  at- 
tachment, it  is  lawful  for  the  justice  to  fine  him  in  any  sum  not  less 
jhan  one  dollar,  nor  more  than  ten  dollars,  or  wholly  discharge  him,  if 
satisfactory  exeuse  be  made.1 

Form  of  Attachment  against  Defaulting  Juror. 

STATE  OF  ILLINOIS, 
COUNTY, 

The  People  of  the  State  of  Illinois,  to  any  Constable  of  said  County, 

GREETING  : 
Whereas,  C.  D.  was  summoned  to  appear  this  day  before  E.  F., 

(1)  Rev.  Stat.  322,  Sec.  48. 


ClIAP.    8.]  TRIAL    BY   JURY.  99 

Esquire,  a  justice  of  the  peace  in  and  for  the  county  aforesaid,  to 
serve  as  a  juror  in  a  certain  cause  then  and  there  depending,  to  be 
tried  between  G.  H.,  plaintiff,  and  J.  K.,  defendant,  and  failed  to 
appear. 

We  therefore  command  you  to  attach  the  said  C.  D.,  and  forthwith 
to  bring  him  before  the  said  justice  of  the  peace,  to  answer  for  contempt 
in  not  obeying  said  summons,  and  to  show  cause,  if  any  he  has,  why 
he  should  not  be  fined  for  such  contempt. 

Given  under  the  hand  and  seal  of  said  justice,  this day  of 

A.  D.  18—.  E.  F.,     (SEAL.) 

Justice  of  the  Peace. 

In  proceeding  against  a  defaulting  juror,  the  return  of  the  constable 
on  the  venire,  will  be  taken  as  sufficient  evidence  of  the  summoning  of 
the  juror.1  And  the  docket  of  the  justice  will  be  sufficient  evidence  that 
the  juror  made  default  in  appearing. 

4.    Of  Challenges. 

Before  the  jury  are  sworn,  if  either  party  have  any  objection,  either 
of  interest,  or  favor,  or  for  other  cause,  against  the  constable  summon- 
ing them,  or  any  of  the  jurors,  whether  originally  summoned  on  a 
venire,  or  from  the  bystanders  as  talesman,  he  must  state  his  objection 
to  the  justice,  which  is  called  a  challenge.2  Challenges  are  of  two 
sorts ;  challenges  to  the  array,  and  challenges  to  the  polls*  A  chal- 
lenge to  the  array  is  an  objection  at  once  to  all  the  jurors  returned  by 
the  constable  collectively ;  not  for  any  defect  in  them,  but  for  some 
partiality  or  default  in  the  constable  who  summoned  the  jury.4  It  is 
two  fold,  viz  :  a  principal  challenge,  and  a  challenge  to  the  array  for 
favor. 

The  causes  of  principal  challenge  to  the  array  are  such  as  the  fol- 
lowing :  That  the  constable,  or  officer  who  makes  the  array,  or  in  other 
words,  who  summoned  and  returned  the  jury,  is  of  kindred  or  affinity 
to  either  party  within  the  ninth  degree ;  that  one  or  more  of  the  jury  are 
returned  at  the  nomination  of  either  party ;  that  an  action  of  battery, 
or  other  action  implying  malice,  is  pending  at  the  suit  of  either  party 
against  the  officer,  or  at  the  suit  of  the  officer  against  either  party ;  that 
the  action  of  debt  is  pending  at  the  suit  of  either  party  against  the 
officer,  but  not  if  by  the  officer  against  either  party ;  that  the  officer  is 
under  the  distress  of  either  party  ;  that  the  officer  is  counsel,  attorney, 

(1)  14  Johns.  481.  (2)  Cowen  Tr.,  4th  Ed.,  Sec.  1290. 

(3)  3  Bl.  Com.  359.  (4)  Co.  Litt.  156, 158;  3  Bl.  Com.  359. 

' 


100  TRIAL    BY   JURY.  [PART.    1, 

or  servant  of  either  party,  or  is  an  arbitrator  in  the  same  matter,  and 
has  treated  thereof.1 

A  justice  has  not  a  right  to  challenge  a  panel  of  jurors  and  issue  a 
new  venire  on  his  own  motion  without  an  objection  by  the  party.2  But 
he  may  on  his  own  motion  challenge  and  set  aside  a  juror  for  intoxica- 
tion ;  indeed,  it  is  held  to  be  his  duty  to  do  so,  if  the  intoxication  be 
apparent.8 

The  causes  of  challenge  to  the  array  for  favor  are  such  as  imply  at 
least  a  probability  of  bias  and  partiality  in  the  officer,  but  do  not  amount 
to  a  principal  challenge.  Thus,  that  the  plaintiff  or  defendant  is  the 
tenant  of  the  officer,  or  that  the  son  of  the  officer  has  married  the 
daughter  of  the  plaintiff  or  defendant.4 

A  challenge  to  the  polls  is  an  objection  made  separately  to  each  juror 
as  he  is  about  to  be  sworn.  Challenges  to  the  polls,  like  those  to  the 
array,  are  either  principal  or  to  the  favor.5  First,  principal  challenges 
may  be  made  on  various  grounds,  and  may  be  classed  under  the  follow- 
ing heads  : 

1.  Propter  Defectum  ;  that  the  juror  is  not  qualified  on  account 
of  some  personal  objection,  as  alienage,  infancy,  old  age,  or  want  of 
those  qualifications  required  by  legislative  enactment.6     But  a  matter 
which  merely  exempts  a  man  from  serving  on  a  jury,  and  does  not 
incapacitate  him,  is  not  a  cause  of  challenge.7 

2.  Propter  Affectum ;  because  of  some  presumed  or  actual  par- 
tiality in  the  juror  who  is   made  the  subject  of  the  objection;  on 
this  ground  a  juror  may  be  objected  to,  if  he   is  related   to  either 
party  within  the  ninth  degree,  or  is  so  connected  by  affinity;  this 
is  supposed  to  bias  the  juror's  mind,  and  is  only  a  presumption  of  par- 
tiality.8    The  smallest  degree  of  interest  in  the  matter  to  be  tried,  is  a 
decisive  objection  against  a  juror.9     But  it  is  provided  by  statute,  that 
in  all  actions  brought  by  or  against  a  county,  the  inhabitants  of  the 
county  so  suing,  or  being  sued,  may  be  jurors,  if  otherwise  competent 
or  qualified  according  to  law,10  and  also  on  the  trial  of  every  action  in 
which  a  town  will  be  a  party,  or  interested,  the  electors  and  inhabitants 
thereof,  are  competent  jurors ;  but  not  so,  in  suits  and  proceedings  by 
and  against  towns.11     So  it  is  a  principal  cause  of  challenge  that  he  has 

(I)  10  Johns.  107;  1  Hill,  654;  7  Cowen,  479;  note  (a.)  (2)  15  Johns.  469. 

(3)  2  Cowen,  430.  (4)  Co.  Litt.  156.  (5)  1  Bouv.  L.  D.  233. 

(6)  See  Rev.  Stat.  308,  Sec.  1.    (7)  Edw.  Tr.,  3d  Ed.  87;  1  Cowen  438,  note. 
(8)  6  Greenl.  307 ;  3  Day,  491.    (9)  See  1  BOUT.  L.  D.  233,  Tit.  "  Challenge,"  and  authorities 
(10)  Rev.  Stat.  132,  Sec.  18.  there  cited. 

(II)  See  Uaines'  Town.  Org.  31,  Sec.  5,  and  note. 


ClIAP.    8.]  TRIAL   BY   JURY.  101 

taken  information  of  the  cause  beforehand ;  that  he  has  declared  his 
opinion  of  the  cause  in  advance,1  or  upon  any  one  principal  point  or 
ingredient  in  the  cause,2  but  not  when  he  merely  expresses  a  conditional 
opinion,  thus  :  "  If  the  reports  of  the  neighbors  be  true  the  defendant 
is  wrong  and  the  plaintiff  is  right;"3  that  since  he  has  been  returned 
he  has  eaten  or  drank  at  the  expense  of  one  or  more  of  the  parties ; 
that  one  of  the  parties  had  labored  the  juror  and  given  him  money  or 
other  things  for  giving  his  verdict ;  that  an  action  implying  malice  or 
displeasure  is  pending  between  the  juror  and  one  of  the  parties,  but  if 
not  implying  malice  or  displeasure,  it  is  but  matter  of  challenge  to  the 
favor.4 

3.  Propter  Delictum,  as  that  the  juror  has  been  convicted  of  some 
crime ;  in  that  case  he  ceases  to  be  a  good  and  legal  man,  and  is  rendered 
incapable  of  serving  as  a  juror.5 

Secondly:  Challenges  to  the  poll  for  favor  may  be  made,  when, 
although  the  juror  is  not  so  evidently  partial  that  his  supposed  bias 
will  be  sufficient  to  authorize  a  principal  challenge,  yet  there  are 
reasonable  grounds  to  suspect  that  he  will  act  under  some  undue 
influence  or  prejudice.  The  causes  for  such  challenge  are  mani- 
festly very  numerous,  and  depend  on  a  variety  of  circumtances.  • 
The  fact  to  be  ascertained  is  whether  the  juror  is  altogether  indiffer- 
erent  as  he  stands  unsworn,  because,  even  unconsciously  to  himself, 
he  may  be  swayed  to  one  side.  The  line  which  separates  the  causes 
for  principal  challenges  and  for  challenge  to  the  favor,  is  not  very  dis- 
tinctly marked.  That  the  juror  has  acted  as  godfather  to  the  child  of 
the  prosecutor  or  defendant,  is  cause  for  a  principal  challenge,6  while  the 
fact  that  the  party  and  the  juror  are  fellow  servants,  and  that  the  latter 
has  been  entertained  at  the  house  of  the  former,  is  only  cause  for  chal- 
lenge to  the  favor.7 

Challenge,  when  and  how  made.  There  can  be  no  challenge  either 
to  the  array  or  to  the  polls  before  a  full  jury  appear ;  therefore,  if  a 
sufficient  number  of  jurors  who  have  been  summoned  on  the  venire,  do 
not  appear,  no  challenge  can  properly  be  made  until  a  sufficient  number 
have  been  summoned,  and  appeared  as  talesmen,  to  complete  the  jury.8 
And  no  juror  can  be  challenged  after  he  has  been  sworn  to  try  the 
cause.  Challenges  to  the  polls  for  favor,  were,  at  common  law,  tried 

(1)  Brecso,  29.  (2)  Burr's  Trial,  418.  (3)  8  Johns.  445. 

(4)  1  Cowen,  438,  note;  3  Bac.  Ab.  748;  4  Scam.  88.  (5)  Rev.  Stat.  182,  Sec.  174. 

(6)  Co.  Litt.  157  a.  (7)  Co.  Litt.  147;  See  1  Bouv.  L.  D.  234. 

(8)  7  Cowen,  478. 


102  TRIAL   BY   JURY.  [PART  1, 

by  the  aid  of  triors,  being  two  indifferent  persons  named  by  the  court.1 
But  by  our  statute  it  is  provided,  that  if  any  juror  shall  be  interested 
in  the  event  of  the  suit,  or  of  kin  to  either  party,  or  shall  have  expressed 
his  opinion  on  the  matter  about  to  be  tried,  or  shall,  for  any  other  cause, 
to  be  judged  of  by  the  justice,  be  considered  as  a  partial  or  improper 
juror,  in  that  case  the  justice  shall  discharge  such  juror.2  By  this 
statute,  it  appears  that  a  challenge  to  the  polls  for  favor,  as  well  as  a 
principal  challenge,  is  to  be  tried  by  the  justice  alone,  without  the  aid 
of  triors.3  On  a  challenge,  either  principal  or  to  the  favor,  the  juror 
may  himself  be  examined  on  oath  of  voir  dire,  with  regard 
to  such  causes  of  challenge  as  are  not  to  his  dishonor  or  discredit ; 
but  not  with  regard  to  any  crime,  or  any  thing  which  tends  to  his  dis- 
grace or  disadvantage.4  The  oath  may  be  in  the  following  form  : 

form  of  Juror's  Oath,  touching  his  competency. 

You  do  swear,  that  you  will  true  answers  make  to  such  questions  as 
may  be  put  to  you,  touching  your  competency  as  an  impartial  juror, 
between  A.  B.,  plaintiff,  and  C  D.,  defendant,  so  help  you,  God.5 

Issuing  of  a  new  venire. — If  on  a  challenge  to  the  array,  the  chal- 
lenge is  allowed,  a  new  venire  should  be  issued. 

As  a  general  rule,  a  justice  cannot  try  a  cause  without  a  jury,  after 
a  jury  has  been  demanded.6 

But  if  a  venire  be  improperly  suppressed  by  the  party  demanding  it, 
the  justice  has  a  right  to  try  the  cause  without  a  jury.  As,  if  the 
justice  should  deliver  the  venire  to  the  party  for  the  purpose  of  handing 
to  the  constable,  which  he  should  neglect  to  do,  and  the  party  should 
not  appear  at  the  return  of  the  venire,  the  justice  would  have  a  right 
to  consider  it  as  a  waiver  of  the  trial  by  jury ;  and,  although  he  might 
issue  another  venire,  he  would  not  be  bound  so  to  do.7 

The  party  demanding  a  trial  by  jury  has  undoubtedly  a  right  to  waive 
such  trial  after  a  venire  has  been  issued  ;  but  if  the  venire  has  been 
served  and  returned,  the  other  party  would  have  a  right  to  insist  that 
the  cause  should  be  tried  by  the.  jury  thus  returned,  notwithstanding 
the  party  originally  demanding  such  trial  should  waive  it ;  or,  if  a  jury 
should  not  be  obtained  on  that  venire,  he  might  require  that  a  new 
venire  should  be  issued  at  his  instance.8 

When  a  new  venire  is  issued,  it  will  be  considered  as  the  process  of 

(1)  4  Bl.  Com.  362.  (2)  Rev:  Stat.  322,  Sec.  49.        (3)  Cot.  Tr.  428. 

(4)  3  Bl.  Com.  364;  19  Johns.  115.  (5)  Cowen  Tr.  4th  Ed.,  Sec.  1299. 

(6)  8  Johns.  460.  (7)  19  Johns.  384.  (8)  Edw.  Tr.  3d  Ed.  89. 


ClIAP.   8.]  PROCEEDINGS    ON    THE    TRIAL.  103 

the  ptarty  at  whoso  instance  the  first  venire  was  issued,  and  no  objection 
to  the  form  of  it  can  be  made  by  him.1 

5.    Of  Swearing  the  Jury. 

After  a  full  jury  has  been  obtained,  they  are  then  to  be  sworn  to 
try  the  cause.  The  whole  panel  may  be  sworn  together,  or  any  number 
at  a  time,  as  may  be  thought  convenient.  They  must  be  sworn  by  the 
justice  to  try  the  case  according  to  the  evidence  f  the  following  will  be 
the  proper  form  of  the  oath  : 

Form  of  Juror's  Oath. 

You,  and  each  of  you,  do  swear  that  you  will  well  and  truly  try  the 
matter  in  difference  between  A.  B.,  plaintiff,  and  C.  D.,  defendant, 
and  unless  sooner  discharged  by  the  court,  a  true  verdict  give  according 
to  evidence. 

Swearing  the  jury  is  a  matter  of  form,  and  an  irregularity  in  swear- 
ing them,  not  objected  to  at  the  time,  cannot  be  assigned  as  error.8 

After  the  jury  are  sworn,  the  justice  should  call  over  their  names, 
and  as  the  jurors  answer,  the  constable  should  count  them  for  the  pur- 
pose of  ascertajning  that  the  jury  contains  the  requisite  uumb.0,  awcl 
the  justice  should  then,  likewise,  take  the  precaution  to  ask  them  if 
they  have  all  been  sworn.  The  jury  should  then  be  seated  together, 
to  hear  the  proofs  and  allegations  of  the  parties. 


V.     OF    PROCEEDINGS    ON    THE   TRIAL. 

The  jury  being  ready  to  hear  the  merits,  and  to  fix  their  attention  the 
closer  to  the  facts,  which  they  are  impanneled  and  sworn  to  try,  the 
nature  of  the  case  and  the  evidence  intended  to  be  produced,  are  next 
laid  before  them  by  the  plaintiff  or  party  holding  the  affirmative,  and 
when  the  evidence  of  such  party  is  gone  through,  the  other  side  opens 
the  adverse  case,  and  supports  it  by  evidence;  and  then  the  party  which 
began  is  heard  by  way  of  reply.4 

The  proper,  and  most  expedient  practice,  however,  is  for  the  plaintiff, 
or  party  holding  the  affirmative,  before  commencing  the  evidence,  to 
briefly  state  his  case  to  the  court  or  jury,  as  the  case  may  be,  and  for 

(1)  2  Caines.  134.  (2)  Rev.  Stat.  321,  Sec.  44. 

(3)  Breese,  12.  (4)  3  Bl.  Com.  367. 


104  OF    PROCEEDINGS    ON    THE    TRIAL.  [PART    1. 

the  other  party  thereupon  to  answer,  and  state  his  defense,  so  that  the 
nature  of  the  case  may  be  fairly  understood  before  commencing  the 
evidence,  in  order  for  a  more  clear  understanding  of  the  testimony,  as 
the  trial  progresses  ;  after  which  the  plaintiff  will  call  his  witnesses  to 
prove  his  case.  When  the  party  thus  holding  the  affirmative  finishes 
his  evidence,  the  defendant  or  adverse  party  follows ;  when  he  is  clone, 
the  party  having  the  affirmative  will  be  permitted  to  give  evidence  to 
rebut  the  testimony  of  his  adversary,  and  impeach  the  credit  of  his 
witnesses  ;  and  then  the  other  party  the  same  right.1 

As  a  general  rule  the  plaintiff  holds  the  affirmative,  but  it  will  fall 
upon  the  defendant  in  cases  like  the  following :  Where  the  defendant, 
without  pleading  the  general  issue,  merely  pleads  payment  of  the  plaint- 
iff's demand,  on  which  issue  is  joined,  this  plea  admits  the  matters 
stated  in  the  declaration,  and  it  will  be  incumbent  on  the  defendant  in 
the  first  place  to  prove  the  payment;  he  therefore  holds  the  affirmative, 
and  will  have  the  right  to  open  the  case  and  first  call  and  examine  his 

witnesses.2 

•* 

When  a  witness  has  been  sworn,  he  is  first  to  be  examined  by  the 
party  who  calls  him,  and  he  has  in  general  a  right  to  go  through  with 
his  ex|mination  before  the  other  party  puts  any  questions  to  him.  The 
witness  may  then  be  cross-examined  by  the  other  party,  and  afterwards 
the  party  who  first  called  him  may  reexamine  him,  and  so  alternately 
until  both  parties  are  through.3 

In  strictness,  the  party  calling  a  witness  is  bound  to  finish  his  ques- 
tions on  the  examination  in  chief ;  then  the  defendant  must  do  the  same 
on  cross-examination ;  and  the  witness  can  be  reexamined  only  to  cut 
down  or  explain  matter  which  comes  out  on  the  cross-examination.  The 
recalling  of  a  witness  after  his  examination  has  been  closed,  is  a  matter 
of  discretion  in  the  court.4 

The  judgment  of  the  court  or  verdict  of  the  jury,  must  be  according 
to  the  proof,  or  evidence  adduced  in  the  cause.5 

All  evidence  before  a  justice  of  the  peace  is  required  to  be  under 
oath,  and  by  parol,  except  where  it  shall  be  necessary  to  exhibit  the 

(1)  Cowen  Tr.,  4th  Ed.,  Sec.  1306.  (2)  Edw.  Tr.,  3d  Ed.,  90. 

(3)  Phil.  Ev.  205.  (4)  2  Scam.  494. 

(5)  Rev.  Stat.  319,  Sec.  28;  321,  Sec.  44.  Evidence  signifies  that  which  demonstrate.-, 
makes  clear,  or  ascertains  the  truth  of  the  very  fact  or  point  in  issue,  cither  on  the  one  side 
or  on  the  other,  and  no  evidence  ought  to  be  admitted  to  any  other  point.  3  Bl.  Com.  367. 
Proof  is  the  conviction  or  persuasion  of  the  mind  of  a  judge  or  jury  by  the  exhibition  of 
evidence,  of  the  reality  of  a  fact  alleged,  as  to  prove,  is  to  determine  or  persuade  that  a  thing 
does  or  does  not  nxist.  2  Bouv.  L.  D.  380. 


ClIAP.    8.] 


OF   PROCEEDINGS   ON   THE   TRIAL. 


form  of  Oath  to  Witness,  generally  or  in  chief. 


the  whole  truth,  and  nothing  but  the  truth 


,  as  to  whether  he  has  an  interest  in  the  cause  or 
-Pom  of  Witness'  Oath  of  i-oir  dire. 


/4m  ./  OaA  of  Witness  to  prove  the  Merest  of  another  witness 
When    the    Parties   may    be    Shanm      Ti 

-r»  law  is,  thal  a  ^/r^Liriry^r 


See  Bev.  Stat.  320,  Sec.  39 


106  OF    PROCEEDINGS    ON    THE    TRIAL.  [PART    1, 

of  the  adverse  party,  under  this  provision  of  the  statute,  the  supreme 
court  have  laid  down  the  following  rule  :*  That  the  statute  which 
allows  the  parties  in  trials  commenced  before  justices  of  the  peace  to 
avail  themselves  of  the  oath  of  the  adverse  parties,  is  in  derogation  of 
the  principles  of  the  common  law,  and  must  be  construed  to  embrace 
only  such  cases  as  are  within  both  the  letter  and  spirit  of  its  provisions. 
If  the  party  to  whom  the  oath  is  referred,  declines  to  be  sworn  as  a 
witness,  or  refuses  to  testify  when  sworn,  the  opposite  party  may  then 
become  a  witness  in  his  own  behalf,  and  testify  in  relation  to  the  matter 
in  question.  But  if  the  party  first  called  is  sworn,  and  testifies  in  good 
faith,  the  object  of  the  statute  is  answered,  and  the  party  claiming  the 
benefit  of  the  statutory  provision  is  not  permitted  to  become  a  witness 
for  himself. 

If  a  party  to  the  suit  is  sworn,  he  is  bound  to  testify  fairly  and  fully 
so  far  as  he  may  be  interrogated.  If  he  manifests  a  disposition  to 
conceal  or  withhold  the  truth,  does  not  give  explicit  answers,  or  deprives 
the  party  calling  him  of  the  benefit  of  the  facts  within  his  knowledge, 
the  court  may  hold  that  he  refuses  to  testify,  and  allow  the  other  party 
to  become  a  witness.  It  is  also  held,2  that  where  a  party  to  a  suit 
pending  before  a  justice  of  the  peace  makes  the  necessary  preliminary 
oath  to  authorize  him  to  call  upon  the  adverse  party  to  testify, 
and  either  the  adverse  party,  or  the  party  making  such  oath  is 
sworn,  he  does  not  become  a  general  witness,  but  his  testimony 
will  be  confined  "to  the  demand,  discount,  or  set-off,"  in  reference 
to  which  he  has  been  sworn.  If  the  party  has  paid  or  discharged 
the  demand  in  reference  to  which  he  was  sworn  and  interrogated, 
he  may  state  that  fact,  and  such  statement  will  be  received  as  res- 
ponsive to  the  question  propounded  to  him.  But  if  he  only  claims 
that  he  is  not  legally  bound  to  pay  such  demand,  by  reason  of  his  hav- 
ing a  subsisting  account  or  set-off  against  the  party  calling  on  him  to 
testify,  he  cannot  proceed  to  establish  such  account,  or  set-off,  by  his 
own  oath,  in  the  first  instance,  by  virtue  of  his  having  been  sworn  at 
the  instance  of  the  adverse  party,  but  must  prove  the  same  by  other 
and  disinterested  evidence,  if  he  has  it,  if  not,  he  must  first  call  on  the 
adverse  party  to  be  sworn. 

Revised  Statutes,  319,  Sec.  31.  "  No  party  to  any  suit  before  a 
justice  shall  be  permitted  to  deny  his  or  her  signature  to  any  written 
instrument,  upon  which  such  suit  shall  be  founded,  or  which  shall  be 
offered  as  a  set-off  or  acquittance  for  the  debt  demanded  in  such  suit, 

(1)  See  11  111.  699.  (2)  4  Scam.  543. 


CHAP.   8.]  OF  PROCEEDINGS  ON  THE  TRIAL.  107 

unless  the  said  denial  be  under  the  oath  of  the  party  so  denying  the 
signature  purporting  to  be  his  or  her  own." 

Form  of  Oath  to  be  administered  to  Defendant  denying  Signature  to 
Instrument  upon  which  Suit  is  founded. 

You  do  swear  that  the  written  instrument  upon  which  the  suit  now 
in  hearing,  against  you,  is  founded,  and  which  is  here  now  offered  in 
evidence,  is  not  your  signature. 

Form  of  Oath  to  be  administered  to  Plaintiff",  denying  Signature  to 
Instrument  offered  as  Set-off  or  Acquittance. 

You  do  swear  that  the  written  instrument  here  now  offered  as  a  set-off, 
(or  acquittance,  as  the  case  may  be)  for  the  debt  demanded  by  you  in 
the  suit  now  in  hearing  against  C.  D.,  is  not  your  signature. 

Contempt  of  Court. — Our  statute  provides  that  every  person  who 
shall  apppear  before  a  justice  of  the  peace  when  acting  as  such,  or  who 
shall  be  present  at  any  legal  proceeding  before  a  justice,  shall  demean 
himself  in  a  decent,  orderly  and  respectful  manner,  and  for  failure  to  do 
so,  such  person  shall  be  fined  by  the  said  justice  for  contempt,  in  any 
sum  not  more  than  five  dollars.1 

For  forms  of  proceeding  in  relation  to  this  subject,  see  PART  THIRD, 
chapter  4,  title,  CONTEMPT  OF  COURT. 

Proceedings  after  the  evidence  is  closed. — After  the  evidence  is 
closed,  the  parties,  by  themselves  or  counsel,  may  make  such  observa- 
tions to  the  jury  as  are -applicable  to  their  case;  the  party  holding  the 
affirmative  closing  the  argument.  This  is  the  natural  order  of  the  trial 
either  before  the  justice  or  jury.2 

It  is  discretionary  with  the  court  to  hear  evidence  after  the  argument 
of  a  cause  is  opened  by  counsel.  This  is  at  all  times,  and  before  all 
courts,  matter  of  discretion,  and  before  justices  of  the  peace  much  more 
ought  this  discretion  to  be  indulged. 3 

If  the  plaintiff  be  satisfied  that  his  proof  is  insufficient  to  sustain  his 
action,  he  may  at  any  time  before  the  cause  is  submitted  to  the  justice, 
elect  to  withdraw,  and  submit  to  a  non-suit ;  but  he  cannot  do  this,  it 
seems,  after  the  cause  has  been  finally  submitted  for  advisement.4  But 

(1)  It  is  held  that  the  power  to  punish  for  contempt  is  an  incident  to  all  courts  of  justice 
independent  of  statutory  provisions.    Breese,  286 ;  see  also  3  Scam.  405. 
(2)  Cowen  Tr.  4th  Ed.  Sec.  1307.  (3)  Breese,  35.  (4)  11  Johns.  457. 


108  OF  PROCEEDINGS  ON  THE  TRIAL.  [PART  1, 

if  the  trial  be  by  jury,  he  may  submit  to  a  non-suit  at  any  time  before 
the  verdict  is  pronounced  by  the  foreman.1 

After  the  testimony  of  the  plaintiff  is  closed,  the  justice  may  non- 
suit the  plaintiff,  if,  in  his  opinion,  the  testimony  offered  does  not 
support  the  action.2  But  after  the  cause  has  been  submitted  to  the 
jury,  the  justice  -has  no  right  to  take  the  cause  from  them  and  non-suit 
the  plaintiff,3  unless  in  case  when  the  plaintiff  fails  to  appear  upon  being 
called,  on  return  of  the  verdict  of  the  jury.4 

The  jury,  after  the  proofs  are  summed  up,  unless  the  case  be  very 
clear,  withdraw  to  some  convenient  place,  to  consider  their  verdict ;  and 
in  order  to  avoid  intemperance  and  causeless  delay,  are  to  be  kept  without 
meat,  drink,  fire  or  candle,  unless  by  permission  of  the  court,  till  they 
are  all  unanimously  agreed.5  When  the  jurors  retire  to  deliberate  upon 
the  case,  a  constable  ought  to  be  sworn  to  take  charge  of  them.6 

Form  of  Constable's  Oath,  on  retiring  with  a  Jury  to  consider  their 

Verdict. 

You  do  swear  that  you  will,  to  the  utmost  of  your  ability,  keep  the 
persons  sworn  as  jurors  on  this  trial,  together,  in  some  private  and 
convenient  place,  without  meat  or  drink,  except  ordered  by  the  court ; 
that  you  will  not  suffer  any  communication,  orally  or  otherwise,  to  be 
made  to  them ;  that  you  will  not  communicate  with  them  yourself, 
orally  or  otherwise,  unless  by  order  of  the  court,  or  to  ask  them  if  they 
have  agreed  on  their  verdict,  until  they  shall  be  discharged  ;  and  that 
you  will  not,  before  they  render  their  verdict,  communicate  to  any  person 

the  state  of  their  deliberations,  or  the  verdict  they  have  agreed  on. 

•.i.- 

After  the  jury  have  retired  to  consider  of  their  verdict,  they  may 
come  back  into  court  and  hear  evidence  of  any  matter  of  which  they 
have  doubts,7  or  to  ask  any  information  or  explanation  of  the  justice  in 
regard  to  the  law ;  but  this  should  only  be  in  the  presence  of  the 
parties.8 

The  justice  should  have  no  intercourse  with  the  jury  after  they  have 
retired  to  consider  of  their  verdict,  except  with  the  consent  or  in  the 
presence  of  the  parties.9 

"When  the  jury  are  unanimously  agreed,  they  will  return  into  court 
with  their  verdict,  upon  which  the  justice  will  call  the  names  of  the 

(1)  5  Johns.  346.  (2)  11  Johns.  299.     (3)  3  Johns.  430. 

(4)  5  Johns.  346;  3  Bl.  Coin.  377.    (5)  3  Bl.  Com.  376.   (6)  3  Bac.  Ab.  768. 
(7)  7  Johns  32.  (8)  13  Wend.  274.     (9)  1  Cowen,  258 ;  13  Johns.  487 ; 

10  Id.  239. 


CHAP.  8.]         EEFERJmQ  DIFFEREXCEg 

f-"-'^  plaintiff,  (o,  defendant  I  WWerS'    We 

" 


-.™" 

twdte*  ?"  and  should  Pi'fhor  nf  *i     •  separately.    'Is  this  your 

«  arf  ssi         in  fte  -TK"  * 


fr  a 


-lifference  of  „„! 


h 

' 


reasor,  and  understanding 


aml  1,flocliun 

f  :uldn,°tbe  kept  °ut  s° 

»">I™I«on,  and  not  of  their 


ARBITKATOKS. 

' 


I0 


1 


18 


to  arbitrators,  mn,nalr>          » 
jn  controve^,  and  i  ^  , 

E™  the  san,o  to  the  justice,  who  l   ,1  en      ,7  '"  "*•«•  an<1 
give  jralgment  aecerdi^g  thereto  "       '       ^    """' 

(1)  3  Bl.  Com.  377. 


110  REFERRING  DIFFERENCES  TO  ARBITRATORS.  [PART  1, 

Where  parties  agree  to  refer  the  matter  in  difference  between  them  to 
arbitrators,  it  is  proper  that  such  agreement  be  reduced  to  writing  and 
filed  with  the  justice. 

Form  of  Agreement  referring  a  matter  in  difference  to  Arbitrators. 

In  Justice's  Court : — Before  Enos  W.  Smith,  Esquire,  Justice. 

John  Smith, 

vs. 
John  Doe. 

We,  the  subscribers,  the  parties  named  in  the  above  entitled  suit,  do 
hereby  agree  to  refer  the  matter  in  difference  between  us  in  said  suit,  to 
A.  B.,  C.  D.  and  E.  F.,  arbitrators  mutually  chosen  by  us. 

Dated  this day  of ,  18 — . 

JOHN  SMITH. 
JOHN  DOE. 

Form  of  Notice  to  Arbitrators. 

In  Justice's  Court  : — Before  Enos  W.  Smith,  Esquire,  Justice. 

John  Smith, 

vs. 
John  Doe. 

To  A.  B.,  C.  D.  and  E.  F.  :— 

Gentlemen  : — You  will  please  to  take  notice  that  the  parties  to  the 
above  entitled  suit  have  mutually  referred  the  difference  between  them 
in  said  suit,  to  you  as  arbitrators.  You  will,  therefore,  proceed  and  ex- 
amine the  matter  in  controversy  between  the  said  parties,  and  make 
out  your  award  thereon  in  writing,  and  deliver  the  same  to  me. 

Dated  this day  of ,  18 — . 

ENOS  W.  SMITH,  J.  P. 

Form  of  Notice  to  Parties. 

In  Justice's  Court : — Before  Enos  W.  Smith,  Esquire,  Justice. 

John  Smith, 

vs. 
John  Doc. 

To  John  Smith, 
Sir: — We,  the    undersigned   arbitrators,   to  whom    the   difference 


CHAP.  8.]  REFERRING  DIFFERENCES  TO  ARBITRATORS.  Ill 

between  the  parties  to  the  above  entitled  suit  has  been  referred,  will  pro- 
ceed to  hear  and  determine  the  same  on  the day  of , 

18 — ,  at o'clock  in  the noon,  at  the  office  of ,  in 

,  in  the  county  of  McHenry,  and  state  of  Illinois. 

Dated  this day  of ,  18 — . 

A.  B. 

C.  D. 

E.  F. 

A  copy  of  the  foregoing  notice  should  be  served  on  each  party. 

Form  of  Award  of  Arbitrators. 
In  Justice's  Court : — Before  Enos  W.  Smith,  Esquire,  Justice. 

John  Smith, 

v». 
John  Doe, 

The  matter  in  difference  between  the  parties  to  the  above  entitled  suit, 
having  been  referred  to  the  subscribers,  arbitrators,  mutually  chosen  by 
them  to  examine  the  matter  in  controversy  in  said  suit,  and  make  out 
their  award  thereon  in  writing,  and  deliver  the  same  to  the  said  justice, 
and  the  said  arbitrators  being  first  duly  sworn,  and  they  having  heard 
the  proofs  and  allegations  of  the  parties,  and  having  considered  the 
same,  do  award,  adjudge  and  determine,  that  there  is  due  from  the  de- 
fendant to  the  plaintiff,  the  sum  of dollars,  and  that  the  said 

defendant  pay  the  said  sum  to  the  said  plaintiff;  and  all  the  costs  of 
suit. 

In  witness  whereof,  we  have  hereunto  set  our  hands  this day 

of ,  18—. 

A.  B. 

C.  D. 

E.  F. 

An  award  by  arbitrators  bars  all  suits  springing  out  of  the  subject 
matter  of  the  award.1 

An  appeal  may  be  prosecuted  from  the  judgment  of  a  justice  on  an 
award,  not  for  the  purpose  of  going  behind  the  award,  and  re-investi- 
gating the  matters  passed  upon  by  the  arbitrators,  but  for  the  purpose 
of  determining  the  correctness  of  the  decision  of  the  justice  ;  and  if  it 

(1)  3  Scain.  245. 


112  REFERRING  DIFFERENCES  TO  ARBITRATORS.  [PART  1, 

be  found  invalid,  the  parties  will  be  remitted  to  their  original  rights, 
and  may  investigate  all  the  matters  anew.1 

Where  a  suit  is  pending  before  a  justice  of  the  peace,  and  the  par- 
ties refer  the  same  to  arbitrators,  they  must  be  bound  by  the  decision 
of  the  arbitrators.2 

The  award  of  two  of  three  arbitrators  is  void,  if  the  third  arbitrator 
has  no  notice  to  act  in  the  matter.8 

(1)  13  HI.  293.  (2)  2  Scam.  489.  (3)  1  Gil.  92. 


ClIAP.  9.1  THE   NATURE   OF   EVIDENCE.  113 


CHAPTER   IX. 

OF  EVIDENCE. 

I.  OF«IHE  NATURE  OF  EVIDENCE. 

II.  OF  THE  COMPETENCY  OF  WITNESSES. 

III.  OF  THE  EXAMINATION  OF  WITNESSES. 

IV.  OF  WRITTEN  EVIDENCE. 

1.  Of  Public  and  Private  Writings. 

2.  Of  the  Proof  of  Private  Writings. 

3.  Of  Proof  of  Hand-  Writing. 

4.  Of  Proving  Proceedings  before  a  Justice. 

V.  OF  PAROL  EVIDENCE,    TO    EXPLAIN,    VARY,    OR    CONTRADICT 

WRITTEN  INSTRUMENTS. 
VI.  OF  CONFIDENTIAL  AND  PRIVILEGED  COMMUNICATIONS. 

I.    OF    THE   NATURE    OF    EVIDENCE. 

Upon  the  subject  of  evidence,  a  few  only  of  the  rules  of  most  gen- 
eral use  can  be  given ;  the  limits  assigned  to  this  work  will  permit 
nothing  like  a  full  treatise  upon  this  subject,  which  would  require  a 
volume  of  itself. 

Evidence  consists  of  either  positive  or  presumptive  proof.  The  proof 
is  positive,  when  a  witness  speaks  to  a  fact  from  his  own  immediate 
knowledge ;  and  presumptive,  when  the  fact  itself  is  not  proved  by 
direct  evidence,  but  is  to  be  inferred  from  the  proof  of  circumstances 
which  either  necessarily  or  usually  attend  such  facts.1  •>  . 

Thus,  a  receipt  for  rent  due  on  a  certain  day,  is  strong  presumptive 
evidence  that  the  former  rent  has  been  paid.  But  it  is  only  presump- 
tive evidence,  and  the  other  party  will  be  allowed  to  prove  the  contrary.2 

(1)  Phil.  EY.  111.  (2)  Phil.  Ev.  113. 


114  THE   NATURE    OF    EVIDENCE.  [PART  1, 

The  general  rule  is,  that  the  matter  in  issue  is  to  be  proved  by  the 
party  who  asserts  the  affirmative.1 

But  where  one  party  charges  another  with  a  culpable  omission,  or 
breach  of  duty,  the  general  rule  above  laid  down  does  not  apply.  In 
such  a  case,  the  person  who  makes  the  charge  is  bound  to  prove  it, 
though  it  may  involve  a  negative ;  for  it  is  one  of  the  first  principles 
of  justice  not  to  presume  that  a  person  has  acted  illegally  until  the 
contrary  is  proved.2 

It  is  also  a  general  rule,  that  the  best  evidence  must  be  given  of 
which  the  nature  of  the  case  is  capable.  The  true  meaning  of  this 
rule  is  not,  that  the  strongest  possible  assurance  of  the  matter  in  ques- 
tion is  required ;  but  that  no  evidence  shall  be  given  which,  from  the 
nature  of  the  thing,  supposes  still  greater  evidence  behind  in  the  party's 
possession  or  power.  Thus,  if  a  party  offer  a  copy  of  a  «leed  or  will, 
when  he  is  able  to  produce  the  original,  this  raises  a  presumption  that 
fchere  is  something  in  the  deed  or  will,  which,  if  produced,  would  make 
against  the  party,  and  therefore  a  copy,  in  such  a  case,  is  not  evidence. 
But  if  he  prove  the  original  deed  or  will  to  be  in  the  hands  of  the 
adverse  party,  to  whom  he  has  given  notice  to  produce  it,  who  refuses, 
or  that  the  original  has  been  lost  or  destroyed  without  his  default,  no 
such  presumption  can  reasonably  be  made,  and  a  copy,  Or  parol  evidence, 
will  be  admitted.8 

Under  this  rule,  it  is  not  necessary,  as  above  observed,  to  give  the 
strongest  possible  assurance  of  a  fact.  Thus,  to  prove  the  plaintiff's 
demand  satisfied,  the  defendant  may  prove  the  fact  of  payment,  or  the 
plaintiff's  admission  to  that  effect,  though  it  should  appear  that  the 
plaintiff  had  signed  a  receipt,  and  it  may  be  said  the  receipt  would  be 
more  satisfactory  proof.4 

So,  if  it  should  be  necessary  to  prove  the  hand-writing  of  a  person 
to  an  instrument  not  a  party  to  the  suit,  it  will  not  be  necessary  to  call 
that  person  to  prove  that  he  signed  the  instrument;  but  it  may  be 
proved  by  others  acquainted  with  his  hand-writing.5 

It  is  also  a  general  rule,  that  hearsay  evidence  of  a  fact  is  not 
admissible.6  To  this  rule  there  are  some  exceptious.  Thus,  hearsay 
evidence  is  admissible  to  prove  a  pedigree,7  or  the  death  of  a  person.8 

Hearsay  is  often  admitted  as  evidence  as  part  of  the  res  gesta ;  as, 
where  it  is  necessary  to  inquire  into  the  nature  of  a  particular  act,  and 

(1)  Phil.  Ev.  150.  (2)  Id.  151 ;  19  Johns.  315.  (3)  Phil.  Ev.  167. 

(4)  Id.  169;  7  Cowen,  334.  (5)  Phil.  Ev.  69, 170. 

(6)  Id.  173.  (7)  8  Johns.  128 ;  5  Cowen,  237,  314.         (S)  15  Johns.  226. 


CHAP.  9.]  THE   NATURE    OF    EVIDENCE.  115 

the  intention  of  the  person  who  did  the  act,  proof  of  what  the  person 
said  at  the  time  of  doing  it,  is  admissible  evidence  for  the  purpose  of 
showing  its  true  character.1 

The  declarations  of  deceased  persons  have  also  been  admitted  in  cases 
where  they  appear  to  have  been  made  against  their  interest ;  as,  entries 
in  their  books  charging  them  with  the  receipt  of  money  on  account  of 
a  third  person,  or  acknowledging  the  payment  of  money  due  to  them- 
selves.2 

Entries  in  the  books  of  a  tradesman  by  his  deceased  clerk,  who 
therein  supplies  proof  of  a  charge  against  himself,  have  been  admitted, 
on  the  same  principle,  to  be  evidence  of  the  delivery  of  goods,  or  of 
other  matter  there  stated  within  his  own  knowledge.8 

The  account  books  of  a  party,  though  the  entries  are  made  by  him- 
self, are  in  certain  cases  admissible  in  evidence.  The  general  rule 
upon  this  subject  is  laid  down  in  Vosburgh  v.  Tkayer.4  In  that  case, 
it  appeared  that  Thayer  sued  Vosburgh  before  a  justice,  for  butchers' 
meat  furnished  by  him  to  Vosburgh  and  his  family.  It  was  proved  by 
several  witnesses  that  he  had  been  in  the  daily  practice  of  supplying 
them  with  meat  during  the  period  for  which  he  claimed  payment.  It 
was  proved  by  some  of  those  who  dealt  with  him,  that  he  kept  just  and 
honest  accounts.  He  then  offered  his  books  of  account  in  evidence,  it 
appearing  that  he  had  no  clerk.  The  books  were  objected  to,  but  admit- 
ted. In  deciding  this  case,  the  court  say,  "  the  admission  of  books  of 
account  in  evidence,  under  proper  limitations  and  restrictions,  is  not  cal- 
culated to  excite  alarm,  or  to  produce  injurious  consequences.  They  are 
not  evidence  of  money  lent.  This  was  so  held  in  Case  v.  Potter,5 
because  such  transactions  are  not,  in  the  usual  course  of  business,  mat- 
ter of  book  account.  They  are  not  evidence  in  the  case  of  a  single 
charge,  because  there  exists,  in  such  case,  no  regular  dealing  between 
the  parties.  They  ought  not  to  be  admitted,  when  there  are  several 
charges,  unless  a  foundation  is  first  laid  for  their  admission,  by  proving 
that  the  party  had  no  clerk  ;  that  some  of  the  articles  charged  have  been 
delivered  ;  that  the  books  produced  are  the  account  books  of  the  party, 
and  that  he  keeps  fair  and  honest  accounts,  and  this  by  those  who  have 
dealt  and  settled  with  him.  Under  these  restrictions,  from  the  necessity 
of  the  case,  and  the  consideration  that  the  party  debited  is  shown  to 
have  reposed  confidence  by  dealing  with  and  being  intrusted  by  the  other 
party,  they  are  evidence  for  the  consideration  of  the  jury.  Testing 

(1)  Phil.  Ev.  202.  (2)  Id.  191.  (3)  Id.  195.  (4)  12  Johns.  461. 

(5)  8  Johns.  212. 


116  COMPETENCY    OF    WITNESSES.  [PART  1, 

the  proceeding  in  this  case,  by  these  rules,  there  is  no  ground  for 
reversing  the  judgment." 

In  a  suit  by  a  shoemaker  for  work  done  in  the  line  of  his  business, 
to  the  amount  of  $11.50,  after  the  proof  of  the  delivery  of  one  pair  of 
shoes  and  the  mending  of  another  pair,  that  the  plaintiff  kept  honest 
and  fair  books,  and  had  no  clerk,  it  was  held  that  the  plaintiff's  account 
books  were  competent  evidence.1 

In  the  case  of  a  public  officer,  as  a  sheriff,  deputy  sheriff,  justice  of 
the  peace,  constable,  &c.,  it  is  sufficient  to  prove  by  reputation,  that  he 
acts  as  a  public  officer,  without  producing  his  appointment.2 

If  a  witness  who  has  been  sworn  and  examined  on  a  former  trial  or 
action  between  the  same  parties,  and  where  the  point  in  issue  was  the 
same,  is  since  dead,  what  he  swore  at  the  former  trial  may  be  given  in 
evidence  j  but  the  words  of  the  witness  must  be  proved,  not  what  is 
supposed  to  be  the  substance  of  his  testimony.  And  the  witness  must 
be  dead ;  his  being  out  of  the  jurisdiction  of  the  court  will  not  be 
sufficient.3  In  such  case,  also,  the  testimony  of  a  witness  who  cannot 
be  found,  after  diligent  inquiry,  has  been  permitted  to  be  proved,  the 
same  as  in  case  of  a  witness  since  deceased.4 


II.    OF  THE  COMPETENCY  OF  WITNESSES. 

The  most  formidable  difficulty  that  presents  itself  to  the  justice,  as 
well  on  a  hearing  by  himself  as  on  trial  before  a  jury,  is  to  determine 
upon  the  admission  or  rejection  of  testimony.  This  difficulty  will  dis- 
cover itself  in  various  shapes,  and  often  in  disguised  forms.  The  in- 
trinsic difficulty  of  the  thing  renders  it  next  to  impossible  to  lay  down 
abstract  rules  that  will  be  a  guide  in  all  cases.  We  will,  therefore,  next 
consider  a  few  of  the  general  rules  in  relation  to  the  competency  of 
witnesses. 

When  a  witness  appears,  he  must  be  regularly  sworn,  unless  an  ob- 
jection be  made  to  his  competency.  An  exception  to  the  credibility  of 
a  witness  cannot  exclude  him  from  being  sworn.  The  exception  of  kin- 
dred, for  example,  although  it  is  a  good  cause  of  challenge  against  a 
juror,  is  not  an  objection  to  the  competency  of  a  witness  ;  a  father  is  a 

(1)  11  Wend.  568.  (2)  3  Johns.  431.  (3)  6  Cowen,  102 ;  Phil.  Ev.  199. 200. 

(4)  See  1  Greenl.  163,  and  note. 


ClIAP.  9.]  COMPETENCY  OF  WITNESSES.  117 

competent  witness  for  or  against  his  son,  or  a  son  for  or  against  his 
father.  Such  objections  may  affect  the  credibility,  but  do  not  affect 
the  competency  of  a  witness.1 

Husband  and  wife,  however,  cannot  be  witnesses  for  or  against  each 
other,  in  any  civil  suit.2 

The  objections  to  the  competency  of  witnesses  are  four-fold  ;  1st. 
For  want  of  reason  or  understanding ;  2d.  Defect  of  religious  princi- 
ples; 3d.  Infamy  of  character ;  and  4th.  On  the  ground  of  interest.3 

1st.  Persons  who  have  not  the  use  of  reason  are,  from  their  infirmity, 
utterly  incapable  of  giving  evidence,  as  persons  insane,  idiots  and  lunar 
tics,  under  the  influence  of  their  malady.4 

But  lunatics  and  others,  who  are  subject  to  temporary  fits  of  insanity, 
may  be  witnesses  in  their  lucid  intervals,  if  they  have  sufficiently  re- 
covered their  understanding. 

A  person  born  deaf  and  dumb  is  not  on  that  account  incompetent, 
but  if  he  has  sufficient  understanding,  may  give  evidence  by  signs,  with 
the  assistance  of  an  interpreter.5 

There  is  no  precise  age  at  which  infants  are  excluded  from  being 
witnesses.  Infants  above  fourteen  are  admissible  the  same  as  of  full 
age.  But  under  that  age,  their  admissibility  is  regulated  by  their  ap- 
parent sense  and  understanding  of  the  nature  and  obligation  of  an  oath.6 

A  witness,  while  in  a  state  of  intoxication,  ought  not  to  be  sworn, 
nor  be  permitted  to  testify ;  and  the  justice  may  decide,  from  his  own 
view,  whether  the  witness  is  in  such  a  situation  that  he  ought  not  to  be 
sworn,  or  admitted  to  testify.7 

2d.  Defect  of  religious  principle.  The  proper  test  of  a  witness' 
competency,  on  the  ground  of  his  religious  principles,  is,  ' '  whether  he 
believes  in  the  existence  of  a  God,  who  will  punish  him  if  he  swears 
falsely."8 

All  persons  who  believe  in  the  existence  of  a  God,  and  a  future  state, 
though  they  disbelieve  in  a  punishment  hereafter  for  crimes  committed 
here,  are  competent  witnesses.9 

A  witness  who  believes  in  a  God,  and  in  punishment  by  him  in  this 
life  only,  is  a  competent  witness.  It  is  not  necessary,  in  order  to  ren- 
der a  man  a  competent  witness,  that  he  should  believe  anything  more 

(1)  Phil.  Ev.  13.  (2)  Id.  63,  64.  (3)  Id.  13. 

(4)  10  Johns.  362;  16  Johns.  143.  (5)  Phil.  Ev.  14. 

(6)  Id.  14, 16.  (7)  16  Johns.  143.  (8)  2  Cowen,  432,  and  note. 

(9)  Breese.  29. 


118  COMPETENCY  OF  WITNESSES.  [PART  1, 

than  that  there  is  a  Supreme  Being,  and  that  he  will  reward  and  punish 
either  in  this  life,  or  a  future  life.  Nothing  but  the  belief  of  a  God, 
and  that  he  will  reward  and  punish  us  according  to  our  deserts,  is  neces- 
sary to  qualify  a  man  to  take  an  oath.1 

If  a  witness  believe  that  he  will  be  punished  by  his  God,  even  in 
this  world,  if  he  swears  falsely,  there  is  a  binding  tie  upon  the  conscience 
of  the  witness,  and  he  must  be  sworn  ;  and  the  strength  or  weakness  of 
that  tie  is  only  proper  to  be  taken  into  consideration,  in  deciding  upon 
the  degree  of  credit  which  is  to  be  given  to  his  testimony.  It  is  a 
question  as  to  his  credibility  and  not  to  his  competency.2 

The  common  law  recognizes  any  mode  of  swearing  a  witness,  that  he 
believes  to  be  binding  on  his  conscience  ;8  and  our  statute,  it  seems, 
does  not  vary  the  common  law  in  this  respect.4  Therefore,  a  witness 
may  be  sworn  according  to  the  form  which  he  holds  to  be  most  solemn, 
and  which  is  sanctified  by  the  usage  of  the  country,  or  of  the  sect  to 
which  he  belongs.  A  Jew  is  sworn  on  the  Pentateuch,  a  Mahomedan 
on  the  Koran,  &c.6 

3d.  Incompetency  on  account  of  infamy  of  character. — Each  and 
every  person,  who  may  have  been  convicted  of  the  crime  of  rape,  kid- 
napping, wilful  and  corrupt  perjury,  or  subornation  of  perjury,  arson, 
burglary,  robbery,  sodomy,  or  the  crime  against  nature,  incest,  larceny, 
forgery,  counterfeiting,  or  bigamy,  are  deemed  infamous,  and  are  for- 
ever rendered  incapable  of  giving  testimony.6  The  competency  of  a 
witness  may,  no  doubt,  be  restored,  however,  by  executive  pardon.7 

A  conviction  of  a  person  for  a  crime,  so  as  to  exclude  him  from  being 
a  witness,  cannot,  in  any  case  be  proved  by  parol ;  and  the  witness 
himself  is  not  to  be  questioned  respecting  it.8 

4.  Incompetency  on  account  of  interest. — It  is  a  general  rule  that 
all  persons  interested  in  the  event  of  a  suit  are  to  be  excluded  from 
giving  evidence  in  favor  of  the  party  to  which  their  interest  inclines 
them.9 

In  Van  Nuys  v.  Terhune,10  the  court  lay  down  .the  following  rule  : 
"  That  if  a  witness  will  not  gain  or  lose  by  the  event  of  the  cause,  or 

(1)  2  Cowon,  572,  note;  1  Starkie  Ev.  93.  (2)  2  Cowen,  433,  note. 

(3)  2  Gil.  554.  (4)  Breese,  28. 

(5)  1  Starkie  Ev.  23.  '  (6)  Rev.  Stat.  182,  Sec.  174. 

(7)  See  Const.  111.,  Art.  IV,  Sec .  8 ;  see  also  1  Stark.  Ev.  99,  and  authorities  cited,  by  which 
it  is  held,  that  a  pardon  restores  competency  in  all  cases  where  the  disability  is  a  consequence 
of  the  judgment  and  not  a  part  of  it. 

(8)  Phil .  Ev.  24 ;  13  Johns.  82 ;  14  Id.  182.  (9)  Phil.  Ev.  34. 
(10)  3  Johns.  Cas.  82. 


ClIAP.    9.]  COMPETENCY   OF   WITNESSES.  119 

if  the  verdict  cannot  be  given  in  evidence  for  or  against  him  in  another 
suit,  the  objection  goes  to  his  credit  only,  and  not  to  his  competency." 

When  a  witness  is  interested  in  any  part  of  the  demand  of  the  party, 
he  cannot  be  permitted  to  testify  as  to  another  part.1 

If  a  witness  have  a  direct  interest,  however  small,  in  the  event  of  a 
cause,  he  cannot  be  permitted  to  testify  in  favor  of  such  interest ;  as,  if 
he  has  given  a  bond  of  indemnity  to  the  plaintiff  against  the  costs  of 
the  suit.2 

But  a  remote  or  contingent  interest,  goes  only  to  the  credit  of  a 
witness,  not  to  his  competency;8  as,  in  a  suit  for  a  penalty  which  is  to 
be  applied  to  the  support  of  the  poor  of  the  town  of  which  the 
witness  is  a  taxable  inhabitant,  the  interest  is  too  remote  and  con- 
tingent.4 

An  interest  in  the  question  alone  will  not  render  a  witness  incompe- 
tent, but  goes  to  his  credit  only ;  as,  when  the  witness  has  a  cause 
depending  upon  the  same  question,5  or  is  a  co-trespasser.6 

A  person  interested  in  the  event,  is  competent  when  called  to  give 
evidence  contrary  to  his  interest.7 

If  a  witness  stands  in  that  situation,  that  which  way  soever  the  suit 
may  terminate,  he  will  be  equally,  liable,  and  to  the  same  extent  to  the 
losing  party,  he  is  admissible.8 

A  witness  liable  to  lose  by  the  determination  of  the  cause  against  the 
party  calling  him,  is  yet  competent  if  he  be  fully  secured  and  indem- 
nified against  the  loss.9 

Neither  a  party  to  a  suit  on  record,  nor  a  party  in  interest  when  a 
suit  is  in  the  name  of  a  third  person  as  a  trustee,  can  be  compelled  to 
testify  without  his  consent.10 

One  defendant  cannot  regularly  be  a  witness  for  his  co-defendant ; 
but  in  actions  for  torts,  if  no  evidence  has  been  produced  against  one 
defendant,  he  is  entitled  to  his  discharge  as  soon  as  ftie  plaintiff  has 
closed  his  case,  and  then  may  give  evidence  for  the  others.  But  if 
there  is  any,  even  the  slightest,  evidence  against  him,  he  cannot  be  thus 
discharged.11  But  in  actions  on  contracts  it  is  otherwise. 

As  a  party  on  record  is  not  a  competent  witness,  so  neither  is  the 
husband  or  wife  of  the  party  competent  to  give  evidence  either  for  or 

(I)  4  Johns.  293.  (2)  11  Johns.  67. 

(3)  5  Johns.  256;  9  Id.  219.  (4)  12  Johns.  286;  1  Id.  486. 

(5)  5  Johns.  256.  (6)  1  Cowen,  344. 

(7)  1  Johns.  159;  7  Cowen,  752.  (8)  16  Johns.  89. 

(9)  7  Cowen,  358.  (10)  7  Cowen,  174. 

(II)  Phil.  Ev.  61  j  14  Johns.  119;  1  Wend.  119. 


120  COMPETENCY   OF    WITNESSES.  [PART    1, 

against  the  party.  They  cannot  be  witnesses  for  each  other,  because 
their  interests  are  absolutely  the  same ;  and  they  cannot  be  witnesses 
against  each  other,  because  it  is  contrary  to  the  legal  policy  of  marriage.1 

As  the  parties  to  a  suit  cannot  be  compelled  to  give  evidence,  state- 
ments or  representations  made  by  them  against  their  interest,  must  be 
evidence  against  them,  and  in  many  cases  they  will  be  the  strongest 
evidence.  The  admissions  of  a  party  to  the  suit  against  his  interest 
are  evidence  in  favor  of  the  other  side,  whether  made  by  the  real  party 
on  the  record,  or  by  a  nominal  party  who  sues  as  trustee  for  the  benefit 
of  another,  or  whether  by  the  party  who  is  really  interested  in  the  suit, 
though  not  named  on  the  record.2 

But  where  the  plaintiff  previous  to  the  suit  had  assigned  his  interest 
in  the  debt  or  chose  in  action,  of  which  the  defendant  had  notice, 
evidence  of  confessions  afterwards  made  by  the  plaintiff,  as  to  the 
demands  of  the  defendant  against  him,  and  which  might  impair  the 
interest  so  assigned,  or  prejudice  the  rights  of  the  assignee,  for  whose 
benefit  the  suit  is  brought,  is  inadmissible.3 

When  the  confession  or  declaration  of  a  party  is  given  in  evidence, 
the  whole  must  be  taken  together.4 

Thus,  if  a  defendant  in  an  action  for  money  had  and  received,  say 
that  he  had  received  the  money,  but  that  it  was  his  due,  it  amounts  to  a 
denial  of  the  plaintiff's  demand.5 

The  confession  of  a  defendant  that  he  had  purchased  goods,  but  that 
he  had  paid  for  them,  is  not  sufficient  to  entitle  the  plaintiff  to  recover.6 

A  witness,  however,  after  being  sworn  in  chief,  may  be  examined  as 
to  his  interest,  and  when  a  witness  in  any  stage  of  his  examination 
discovers  himself  to  be  interested  in  favor  of  the  party  calling  him,  his 
testimony  may  be  rejected.7 

Whatever  interest  a  witness  may  have  had,  if  he  be  divested  of  it  by 
release  or  payment,  or  by  any  other  means,  when  he  is  ready  to  be 
.sworn,  there  is  no  objection  to  his  competency.8 

But  a  release  after  the  examination  in  chief  of  an  interested  witness, 
is  too  late  to  render  his  testimony  competent.9 

An  actual  release  is  in  some  cases  unnecessary,  and  the  witness, 
though  interested,  will  be  admitted  without  a  release.  As,  when  the 

(1)  Phil.  Ev.  63,  64.  (2)  Phil.  Ev.  71,  72. 

(3)  20  Johns.  142.  (4)  3  Johns.  427;  10  Id.  38;  9  Id.  141. 

(5)  3  Johns.  427.  (6)  15  Johns.  329. 

(7)  6  Johns.  523.  (8)  Phil.  Ev.  97;  8  Johns.  377;  1  Johns.  Gas.  270. 

(9)  14  Johns.  378 ;  1  Caine,  14. 


CHAP.  9.]  EXAMINATION  OF  WITNESSES.  121 

witness  offers  to  release  his  interest,  but  the  other  party  refuses  to  accept 
it,  in  that  case  the  evidence  of  the  witness  may  be  received ;  or,  if 
the  party  on  whose  side  the  witness  is  interested,  make  an  offer  to 
remove  all  interest,  by  a  release  or  otherwise,  and  the  witness  refuses, 
that  will  not  deprive  the  party  of  his  testimony.1 


III.    OF  THE  EXAMINATION  OF  WITNESSES. 

When  a  witness  is  called,  he  is  to  be  sworn  in  chief,  unless  an  objec- 
tion is  made  to  his  competency,2  in  which  case,  the  party  objecting 
proves  his  incompetency ;  or,  if  the  objection  be  on  account  of  interest, 
the  witness  himself  may  be  examined  on  his  voir  dire,  as  before  no- 
ticed f  but  latterly,  it  is  not  usual  to  examine  a  witness  on  his  voir  dire, 
but  to  permit  him  to  be  sworn  in  chief,  after  which  he  may  be  examined 
as  to  his  interest.4 

A  witness  is  not  to  be  compelled  to  answer  any  question  which  will 
render  him  infamous  or  disgraced.5  But  this  is  a  personal  privilege 
only,  and  the  witness  may,  if  he  see  proper,  waive  it,  and  answer  the 
question ;  but  the  court  should  inform  him  of  his  privilege.  Thus,  in 
an  action  for  a  breach  of  promise  of  marriage,  a  witness  may  be  asked 
if  he  had  had  any  improper  connection  with  the  plaintiff;  and  the  wit- 
ness may,  if  he  see  proper,  answer  the  question,  but  he  is  not  bound  to 
answer  it.6 

A  witness  can  depose  to  such  facts  only  as  are  within  his  own  recollec- 
tion, but  to  assist  his  memory,  he  may  use  a  written  entry  or  memo- 
randum, or  the  copy  of  a  memorandum ;  and  if,  afterwards,  he  can 
swear  positively  to  the  truth  of  the  fact  there  stated,  such  evidence  will 
be  sufficient.7 

In  general,  the  opinion  of  a  witness  is  not  evidence  ;  he  must  speak 
to  facts.  But  in  questions  of  science,  or  trade,  or  others  of  the  same 
kind,  persons  of  skill  may  speak  not  only  as  to  facts,  but  are  also  al- 
lowed to  give  their  opinion  in  evidence.  Evidence  of  character  is 
founded  on  opinion.8 

(1)  Phil.  Ev.  99.  (2)  See  ante,  p.  117.  (3)  Ante,  p.  105. 

(4)  Phil.  Ev.  204.  (5)  Phil.  Ev.  206  ;  13  Johns.  82. 

(6)  6  Cowen,  254.  (7)  Phil.  Ev.  209  ;  2  Caino,  129. 

(8)  Phil.  Ev.  209. 


122  WRITTEN    EVIDENCE.  [PART  1, 

The  party  against  whom  a  witness  is  called,  may  disprove  the  acts 
stated  by  him,  or  may  impeach  his  credibility  by  examining  other  wit- 
nesses as  to  his  general  character,  but  they  will  not  be  allowed  to  speak 
to  particular  facts  or  parts  of  his  conduct.  The  regular  mode  is  to  in- 
quire whether  they  have  the  means  of  knowing  the  witness'  general 
^character  as  to  truth  and  veracity,  and  whether,  from  such  knowledge, 
they  would  believe  him  on  his  oath.1  The  knowledge  as  to  a  witness' 
character,  must  be  derived  from  his  general  reputation,  and  not  what  an 
individual  knows  of  him. 

The  credit  of  a  witness  may  also  be  impeached,  by  proof  that  he  has 
made  statements  out  of  court  on  the  same  subject,  contrary  to  what  he 
swears  at  the  trial.  In  answer  to  such  evidence,  the  party  calling  the 
witness,  may  show  that  he  has  affirmed  the  same  thing  before,  on  other 
occasions,  and  that  he  is  still  consistent  with  himself.2 

But  evidence  is  inadmissible  to  support  the  testimony  of  a  witness, 
by  showing  his  good  character,  or  the  consistency  between  his  former 
declarations  and  his  evidence  on  the  trial,  unless  he  is  first  impeached.3 

A  party  will  not  be  permitted  to  produce  general  evidence,  to  dis- 
credit his  own  witness ;  that  is,  he  will  not  be  allowed  to  prove  that  his 
character  is  bad,  for  the  purpose  of  showing  that  he  is  unworthy  of 
credit.4  But  if  a  witness  unexpectedly  give  evidence  against  the  party 
calling  him,  another  witness  may  be  called  to  prove  the  facts  otherwise.5 

The  competency  of  witnesses,  and  the  inadmissibih'ty  of  evidence, 
are  questions  to  be  decided  by  the  justice  alone.  In  the  higher  courts. 
a  bill  of  exceptions  may  be  taken  to  the  opinion  of  the  court  on  ques- 
tions of  this  kind.  But  this  is  a  proceeding  not  applicable  to  a  justice's 
court. 


IV.    OP   WRITTEN   EVIDENCE. 

1.    Of  Public  and  Private  Writings. 

Writings  are  either  public  or  private.  Some  public  writings  are  of 
record ;  others,  not  of  record.6 

Public  writings  of  record  are  acts  of  the  legislature,  and  of  courts 
of  justice  which  are  courts  of  record. 

(1)  Phil.  Ev.  212.  (2)  Id.  213.  (3)  5  Cowen,  314. 

(4)  7  Cowen,  23S.  (5)  Phil.  Ev.  213.  (6)  W.  218. 


ClIAP.   9.]'  WRITTEN    EVIDENCE.  123 

Acts  of  the  legislature  are  of  two  kinds  :  public  acts,  which  relate  to 
the  whole  State  at  large,  and  private  acts,  which  relate  to  particular 
classes  of  men,  or  to  certain  individuals.1 

The  general  rule  is,  that  public  acts  of  the  legislature  are  to  be  taken 
notice  of  judicially,  by  courts  of  law,  without  being  formally  set  forth  ; 
but  private  acts  are  not  regarded  by  the  judges,  unless  formally  shown 
and  pleaded.2 

Copies  of  records  in  courts  of  justice  are  of  two  kinds :  under  seal, 
and  not  under  seal.  Those  under  seal  are  called  exemplifications,  and 
are  of  higher  credit  than  any  sworn  copy.3 

Copies  of  records  not  under  seal  are  also  of  two  kinds  :  sworn  copies, 
and  office  copies. 

Copies  of  records  may  be  proved  by  a  witness  who  has  compared  the 
copy  with  the  original,  or  who  has  examined  the  copy  while  another 
person  read  the  original,  and  these  are  called  sworn  copies.4 

Office  copies  are  such  as  are  authenticated,  under  the  hand  of  an 
officer,  or  person  intrusted  for  that  purpose,  as  the  clerk  of  the  court.5 

2.    Of  the  Proof  of  Private  Writings. 

The  execution  of  every  instrument  to  which  there  is  a  subscribing 
witness,  whether  under  seal  or  not,  ought  to  be  proved  by  the  subscrib- 
ing witness,  if  he  can  be  procured,  and  is  capable  of  being  examined.6 

And  this  rule  is  so  strictly  observed  that  a  deed  executed  by  a  third 
person  not  a  party  to  the  suit  to  which  there  is  a  subscribing  witness, 
cannot  be  proved  by  the  party  executing  it,  nor  by  the  party  to  whom 
it  is  given,  but  the  subscribing  witness  should  be  called.7 

So  in  the  case  of  a  deed  or  instrument  under  seal,  to  which  there  is 
a  subscribing  witness,  proof  of  the  confession  of  the  party  that  he  executed 
the  deed  is  not  sufficient,  but  the  subscribing  witness  must  be  produced, 
or  if  he  cannot  be,  his  hand-writing  must  be  proved.8 

But  as  to  instruments  not  under  seal,  the  rule  is  otherwise ;  in  that 
case  the  acknowledgement  of  the  party  is  sufficient.9  If  a  written  instru- 
ment is  attested,  but  none  of  the  witnesses  are  capable  of  being  examined, 
the  course  then  is  to  prove  an  attesting  witness'  hand-writing,  and  this 
will  be  a  sufficient  proof  of  the  execution,  without  proving  the  hand- 
writing of  the  party  ;10  as  where  the  attesting  witness  is  dead,11  or  blind, 

(1)  Phil.  Ev.  219.  (2)  Id.  220.  (3)  Id.  289.  (4)  Id.  291. 

(5)  Id.  294.  (6)  Id.  356.  (7)  Id.  357;  9  Johns.  23G. 

(8)  3  Johns.  477.  (9)  2  Johns.  451;  16  Id.  201. 

(10)  4  Johns.  461.  (11)  1  Johns.  Cas.  230 ;  4  Johns.  461.      • 


124  WRITTEN  EVIDENCE.  [PART  1, 

or  incompetent  to  give  evidence,  either  from  insanity  or  from  infamy  of 
character,  or  from  interest,  or  when  the  subscribing  witness  is  out  of 
the  State  or  the  jurisdiction  of  the  court,  which,  in  a  justice's  court,  is 
when  the  witness  is  not  in  the  same  or  next  adjoining  county,1  or  where 
he  cannot  be  found  after  strict  and  diligent  inquiry.2 

If  there  are  two  or  more  subscribing  witnesses,  the  calling  of  one  to 
prove  the  instrument  is  sufficient ;  or  if  the  absence  of  all  of  them  be 
accounted  for,  proof  of  the  hand-writing  of  one  of  them,  or  of  the  party 
signing  the  instrument,  will  be  sufficient.3 

But  if  there  are  two  or  more  subscribing  witnesses,  it  is  not  enough  to 
prove  one  of  them  dead  or  out  of  the  jurisdiction  of  the  court,  and  then 
prove  his  hand-writing  with  that  of  the  party,  but  the  absence  of  all  the 
subscribing  witnesses  must  be  accounted  for.4 

But  in  cases  where  there  is  no  subscribing  witness,  or  the  subscribing 
witness  denies  having  any  knowledge  of  the  execution  ;5  or  where  the 
name  of  a  fictitious  person  is  inserted ;  or  where  the  attesting  witness 
was  interested  at  the  time  of  the  execution,  and  continues  so  at  the  time 
of  the  trial ;  or  where  the  person  who  has  put  his  name  as  a  subscrib- 
ing witness,  did  so  without  the  knowledge  or  consent  of  the  parties ; 
or  if,  after  diligent  inquiry,  nothing  can  be  heard  of  the  subscribing 
witness,  so  that  he  can  neither  be  produced  himself,  nor  his  hand- 
writing proved  ;  or  if,  at  the  time  of  the  execution,  he  was  of  such  an 
infamous  character  as  to  make  him  incompetent  to  give  evidence — in 
these  cases  the  instrument  may  be  proved  by  proving  the  hand-writing 
of  the  party,  or  by  any  person  present  at  the  execution  who  did  not 
subscribe  it  as  a  witness,  or  by  proof  of  the  admission  of  the  party  that 
he  executed  the  instrument.6 

3 .    Of  Proof  of  Hand-writing. 

The  simplest  and  most  obvious  proof  of  hand-writing  is  the  testimony 
of  a  witness  who  saw  the  paper  or  signature  actually  written.  But  a 
great  variety  of  cases  must  continually  occur  where  such  a  direct  kind 
of  evidence  cannot  possibly  be  produced.7 

The  hand-writing  of  a  person  may  therefore  be  sufficiently  proved  by 
a  witness  who  is  previously  acquainted  with  his  hand-writing,  and  who 
testifies  that  he  believes  the  hand-writing  in  question  to  be  his.  This 
previous  acquaintance  with  the  hand-writing  of  a  person  may  be 

(1)  12  Johns.  188.  (2)  Phil.  Ev.  362.  (4)  11  Johns.  64;  12  Id.  188. 

(4)  5  Cowen,  383.  (5)  2  Johns.  451.  (6)  Phil.  Ev.  361^1. 

(7)  Id.  364. 


CHAP.  9.]  PAROL  EVIDENCE.  125 

derived  either  from  having  seen  the  person  write,  or  from  papers  received 
in  the  course  of  business,  which  there  is  sufficient  reason  to  believe 
were  written  by  the  party,  as  letters,  notes  which  have  been  paid,  &C.1 
Hand-writing  cannot  be  proved  by  comparing  the  paper  in  dispute 
with  other  papers  acknowledged  to  be  genuine,  either  by  a  witness  or 
by  the  court  or  jury.2 

4.    Of  Proving  Proceedings  before  a  Justice. 

The  proceedings  and  judgment  in  a  justice's  court,  are  not  strictly 
and  technically  a  record  ;  yet  the  material  parts  are  in  writing,  and 
cannot  be  proved  by  parol.3 

A  judgment  of  an  inferior  court,  not  of  record,  is  usually  established 
by  the  production  of  the  book  containing  the  minutes  of  the  proceedings 
of  the  court,  from  the  proper  place  of  deposit,  proved  to  be  such  by  oral 
testimony.4  In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice 
of  the  peace  of  another  State,  to  be  received  in  evidence  in  this  State, 
it  must  be  shown,  that  by  the  laws  of  the  State  where  the  judgment  was 
rendered,  the  justice  had  jurisdiction  over  the  subject-matter  upon 
which  he  attempted  to  adjudicate.5 


V.     OF    PAROL    EVIDENCE   TO    EXPLAIN,    VARY,    OR    CONTRADICT    WRITTEN 

INSTRUMENTS. 

Parol  evidence  is  not  admissible  to  explain  an  ambiguity  which 
appears  on  the  face  of  an  instrument,  but  it  can  be  explained  only  by 
collecting  the  general  intention  from  other  parts  of  the  writing,  or  by 
a  reference  to  some  event,  or  some  other  writing,  or  some  medium  of 
explanation  adverted  to  in  the  instrument.  If  it  be  incapable  of  being 
explained  in  this  way,  it  will  be  void,  for  uncertainty.  The  declaration 
of  the  parties  as  to  their  intention,  is  inadmissible.6 

But  where  there  is  no  ambiguity  on  the  face  of  an  instrument,  but 
a  doubt  is  produced  by  extrinsic  evidence,  or  some  collateral  matter 
out  of  the  instrument,  as,  if  it  should  appear  that  there  were  two  per- 
sons of  the  same  name,  as  is  mentioned  in  the  instrument,  parol 

(1)  Phil.  Ev.  364;  2  Johns.  Cas.  211 ;  19  Johns.  134. 

(2)  2  Johns.  Cas.  211;  Phil.  Ev.  371;  13  Johns.  238.        (3)  11  Johns.  166. 
(4)  1  Stark.  256.  (5)  1  Scam.  558. 
(6)  Phil.  Ev.  416;  11  Johns.  201. 


126  CONFIDENTIAL    COMMUNICATIONS.  PART  1, 

evidence  is  admissible  to  explain  the  ambiguity,  and  show  which  person 
was  intended.1 

It  is  a  general  rule  that  written  agreements,  whether  specialties  or 
simple  contracts,  and  whether  within  or  without  the  statute  of  frauds, 
are  not  to  be  contradicted,  varied,  or  materially  affected  by  parol  testi- 
mony f  as,  to  show  that  an  agreement,  absolute  on  its  face,  was  in- 
tended to  be  upon  condition,8  to  show  a  mistake  as  to  the  time  of 
payment  or  other  matter.4 

The  above  rule,  however,  does  not  exclude  parol  evidence  of  fraud, 
or  the  icant  or  failure  of  consideration,  or  the  enlargement  of  the  time 
for  performance,  or  a  waiver  of  the  performance  of  a  written  simple 
contract,5  or  of  a  bond.6 

But  a  receipt,  although  absolute  in  its  terms,  and  expressed  to  be  in 
full,  is  not  conclusive,  and  parol  evidence  is  admissible  to  show  a 
mistake  in  it,  or  to  explain  or  contradict  it.7  So,  parol  evidence  may 
be  received  to  impeach  the  consideration  of  a  note,  but  not  to  vary 
its  terms.8  Bui  parol  evidence  cannot  be  given  of  the  contents  of  a 
written  instrument  or  record,  in  the  power  of  the  party  to  produce.9 

Parol  evidence  may  be  introduced  to  show  the  understanding  with 
which  a  note  was  indorsed,  without  violating  the  rule  that  a  written 
contract  cannot  be  contradicted  by  parol  proof.10 

Parol  testimony  may  be  given  of  the  time  of  filing  a  deed  for  record.11 

The  law  presumes  that  an  instrument  was  executed  the  day  it  bears 
date ;  but  parol  testimony  is  admissible  to  show  that  it  was,  in  fact, 
executed  on  a  different  day.12 


VI.    OF    CONFIDENTIAL   AND    PRIVILEGED    COMMUNICATIONS. 

A  counsel  or  attorney  is  not  to  be  permitted  to  testify  as  to  confiden- 
tial communications  made  to  him  by  his  client.     This  prohibition  extends 

(1)  Phil.  Ev.  416;  11  Johns.  201. 

(2)  1  Cowen,  249;  1  Johns,  139;  3  Id.  68;  12  Id.  427-488.  (3)  1  Cowen,  249. 

(4)  8  Johns.  189,  375 ;  18  Id.  45.    Parol  evidence  nay  be  admitted  to  show  that  an  absolute 
deed,  whatever  may  be  its  covenants,  was  intended  as  a  mortgage,  or  mere  security  for  the 
payment  of  a  debt,  and  the  grantor  can  have  relief  in  equity.    3  Gil.  394. 

(5)  1  Cowen,  250.  (6)  3  Johns.  528. 

(7)  7  Cowen,  334 ;  5  Johns.  58 ;  1  Johns.  Cas.  145 ;  2  Johns.  37S ;  3  Id.  319 ;  8  Id. 389 ;  9  Id.  310. 

(8)  12  111.  287.  (9)  Breese,  232;  2  Scam.  42.  (10)  11  111.  575. 
(11)  1  Gil.  575.                             (12)  133  111.  13. 


CHAP.  9.]  CONFIDENTIAL    COMMUNICATIONS.  127 

not  only  to  the  suit  in  which  the  communication  is  made,  but  to  any 
other  suit,  and  to  any  period  of  time.1 

To  entitle  communications  between  individuals  to  be  considered  as 
confidential  and  privileged,  the  relation  of  client  and  attorney  must 
exist,  the  party  must  consult  the  attorney  in  a  matter  in  which  his 
private  interest  is  concerned,  and  make  the  statements  to  him,  with  the 
view  to  enable  the  attorney  correctly  to  understand  his  cause.2 

Where  an  attorney  is  consulted  merely  as  a  friend,  and  where  neither 
he  nor  the  persons  communicating  with  him,  supposes  that  the  relation 
of  attorney  and  client  exists  between  them,  the  communications  will 
not  be  considered  as  privileged.3 

(1)  Phil.  Ev.  103;  1  Greenl.  Ev.  Sec.  237.  (2)  3  Gil.  299.  (3)  14  111.  89. 


128  DOCKET    ENTRIES.  [PART    1. 


CHAPTER    X. 

OF  THE  DOCKET,  AND  FOKMS  OF  DOCKET  ENTRIES. 

I.  OF  THE  DOCKET. 
II.  OF  FORMS  OF  DOCKET  ENTRIES. 

1.  Where  the  Parties  appear,  and  the  Trial  is  by  Jury. 

2.  Where  Suit  is  commenced  by   Warrant,  the  Execution 

sworn  out  and  returned  not   satisfied,  and  ca.   sa. 
issued  against  the  Body. 

3.  Where  Suit  is  brought  on  Promissory  Note  placed  in 

the  hands  of  the  Justice  for  collection,  and  the  Parties 
do  not  appear. 

4.  Where  the  Parties  agree  to  have  a  Difference  decided 

by  the  Justice  without  process. 

5.  Where  Judgment  is  by  Confession. 

6.  Where  Proceeding  is  against  Garnishee  after  Execution 

is  returned,  (' no  property  found." 

7.  Where  Administrators  or  Executors  are  Parties  to  a 

Suit. 

8.  Minutes  of   Conviction  of  Witness  attached  for  Non- 

attendance. 

9.  Memorandum  to  be  entered  where    Cause  is  appealed. 
10.  Entry  of  Acknowledgement  of  Chattel  Mortgage. 

I.     OF   DOCKET    ENTRIES. 

By  Kev.  Stat.  316,  Sec.  20,  it  is  enacted,  that  "It  shall  be  the  duty  of 
every  justice,  whenever  a  suit  shall  be  commenced  before  him,  to  record 
in  a  book  kept  for  that  purpose,  the  names  of  the  parties,  the  amount 
and  nature  of  the  debt  sued  for,  the  date  and  description  of  the  process 
issued,  and  the  name  of  the  officer  to  whom  such  process  shall  be 


CHAP.  10.]  DOCKET  ENTRIES.  129 

delivered,  and  throughout  the  whole  of  the  proceeedings  in  any  suit,  it 
shall  be  his  duty  whenever  any  process  shall  be  issued  or  returned,  or 
any  order  made,  or  judgment  rendered,  to  make  a  written  memorandum 
of  the  same,  in  the  same  book,  and  to  file  and  safely  keep  all  papers 
given  him  in  charge." 

The  book  in  which  the  justice  records  his  proceedings,  as  required  by 
the  foregoing  section,  is  called  his  docket.  The  docket  entry  of  a  jus- 
tice is  not  technically  a  record,  but  it  has  all  the  effect  of  a  record,  and 
should  be  made  in  language  as  explicit  and  certain  as  to  matters  of 
substance,  as  a  judgment  of  a  court  of  record.  It  should  clearly 
appear  from  the  docket  itself,  who  the  parties  are,  plaintiff  and  defend- 
ant, and  in  whose  favor  and  against  whom  the  judgment  was  rendered.1 

If  strict  attention  is  paid  to  the  requirements  of  the  statute,  as  con- 
tained in  the  section  hereinbefore  given,  there  can  be  no  difficulty  in 
determining  what  the  entries  upon  the  docket  should  be  in  each  partic- 
ular case.  The  requirements  of  the  statute  may  be  thus  arranged  : 

1st.  The  names  of  the  parties. 

2d.  The  amount  and  nature  of  the  debt  sued  for. 

3d.  The  date  and  description  of  the  process  issued,  and  the  name  of 
the  officer  to  whom  such  process  shall  be  delivered. 

The  justice  will  also  note  the  return  of  the  original  process,  and  enter 
every  subsequent  process  issued ;  also  note  the  return  thereof. 

He  will  note  every  material  incident  occurring  in  the  progress  of  the 
trial,  and  make  a  memorandum  of  every  order  he  shall  make,  and  of 
the  judgment  he  may  render.  All  of  which  matters  should  be  stated 
in  the  order  of  time  in  which  they  transpired.  The  justice  is  not  bound, 
however,  and  it  is  held  that  he  ought  not  to  state  on  his  docket  the 
evidence  that  was  given  by  witnesses  on  the  trial,  nor  what  testimony 
was  overruled,  or  what  the  parties  said  or  urged  before  him.2  A  justice 
may,  after  his  docket  is  made  up,  amend  it  according  to  the  truth,8  and 
correct  mere  clerical  errors,  or  an  omission  or  mistake  in  the  costs.4 

A  few  forms  of  entries  will  here  be  given  to  illustrate  the  foregoing 
directions,  which  may  serve  to  some  extent  as  a  guide  for  the  justice  in 
civil  proceedings.  Further  illustrations,  in  case  of  summary  proceed- 

(1)  1  Dougl.  Mich.  R.  503. 

(2)  Wright's  R.  418.     This  has  no  reference,  however,  to  the  statements  of  the  parties 
before  the  commencement  of  the  trial,  necessary  to  inform  the  court  and  the  opposite  party 
of  the  plaintiff 's  claim,   or  the  defendant's  ground  of  defence,  for  it  is  proper,  as  we  have 
before  seen,  (Ante,  p.  61,)  that  these  should  be  noted  upon  the  docket.    But  it  has  reference 
to  the  arguments  or  summing  up  of  the  parties,  at  the  conclusion,  or  during  the  progress  of 
the  trial. 

(3)  1  Green,  195.  (4)  Swan's  Tr.  3d  Ed.  116. 


130 


FORMS  OF  DOCKET  ENTRIES. 


[PART.  1, 


ings,  and  the  like,  will  be  found  in  other  parts  of  this  work,  which  will 
readily  be  found  by  reference  to  the  index,  under  the  head  of  "  Docket 
Entries." 


II   FORMS  OF  DOCKET  ENTRIES. 

1 .    Where  Parties  appear,  and  the  Trial  is  by  Jury. 

STATE  OF  ILLINOIS,  ) 
Lake  COUNTY,      j 

In  Justice's  Court. — Before  William  C.  Newman,  Justice. 
A.  B.  ]       Plaintiff's  Demand,  $10.00. 

vs.      >      For  property  wrongfully  taken  and  converted  by  the 
C.  D.J  Defendant. 

1855 — September  1st. — Summons  issued,  return- 
able the  6th  of  September,  instant,  at  one 
o'clock,  P.  M.,  and  delivered  to  Chaun- 
cey  Buell,  constable,  to  serve.  One  subpoena 
issued  on  the  part  of  the  plaintiff.  One  sub- 
poena issued  on  the  part  of  the  defendant ; 
both  delivered  to  constable  Buell  to  serve. 

September  4th. — Summons  returned  by 
constable  Buell.  Personally  served  by  read- 
ing to  the  defendant,  the  3rd  day  of  Septem- 
ber, 1855.  Constable's  fees,  30  cents.  The 
subpoenas  of  the  plaintiff  and  defendant  like- 
wise returned  by  constable  Buell.  Served 
on  the  persons  therein  named.  Constable's 
fees,  35  cents. 

September  6th,  10  o'clock,  P.  M. — Par- 
ties appear ;  Plaintiff  claims  of  the  defendant 
Ten  dollars,  for  a  quantity  of  Hay,  the  prop- 


PLAINTIFF'S  COSTS. 

Justice's  Fees. 

Summons,  ...................  l&J 

Docketing  suit,  ...............  12£ 

One  subpoena,  ................  18J 

Swearing  one  witness,  ........  61 

Entering  judgment,  ..........  25 


Constable's  Fees. 


30 


On  summons, 

On  subpoena,  .................  17 

Two  witness'  fees,  ..........  1  00 


DEFENDANT'S  COSTS. 


Justice's  Fees. 


One  subpoena, 

"   venire, 

Swearing  one  witness, 
"  jury, 


.25 


.37] 


constable, 

Constable's  Fees. 

On  subpoena, 17i 

On  venire, 50 

Attending  trial, 25 

One  witness'  fee, 50 

Jury  fee, 150 


erty  of  the  plaintiff,  wrongfully  taken  and 
converted  by  the  defendant.  Defendant  de- 
nies the  taking  of  the  property,  and  demands 
that  the  cause  be  tried  by  a  jury,  and  pays 
the  fees  required  by  law.  Venire  issued, 
directed  to  any  constable,  commanding  him 
to  summon  a  jury  of  six  men.  Cause 
adjourned  to  September,  7th  instant, 


CHAP.  10.] 


FORMS  OF  DOCKET  ENTRIES. 


131 


at  two  o'clock,  P.  M.,  to  obtain  a  jury.     Venire  delivered  to  constable 
Buell  to  serve. 

September  7th,  2  o'clock,  P.  M. — Parties  reappear.  Venire  returned 
by  constable  Buell,  with  the  following  names  of  the  jury:  A.  B.,  C.  D., 
E.  F.,  G.  H.,  I.  J.  and  K.  L.,  who,  upon  being  called,  appeared,  and 
were  sworn  to  try  the  cause. 

John  Doe  and  Richard  Roe,  were  summoned  and  attended,  and  were 
sworn  as  witnesses  on  the  part  of  the  plaintiff. 

John  Smith,  summoned  and  attended,  and  was  sworn  as  a  witness  on 
the  part  of  the  defendant.  All  of  whom  claim  fees. 

After  hearing  the  testimony,  the  jury  retire,  under  the  charge  of 
constable  Buell,  sworn  for  that-purpose.  The  jury  return  into  court,  and 
say  that  they  find  for  the  plaintiff,  and  assess  his  damages  at  ten  dollars. 
It  is,  therefore,  considered  by  the  court,  that  the  said  plaintiff  have  and 
recover  of  the  said  defendant  the  sum  of  ten  dollars,  for  his  damages, 

with  costs  of  suit  herein,  taxed  at dollars  and cents. 

WILLIAM  C.  NEWMAN. 

2.    Where  suit  is  commenced  by  Warrant,  the  Execution  sworn  out 
and  returned  not  satisfied,  and  ca.  sa.  issued  against  the  Body. 

STATE  OF  ILLINOIS, 
Lake  COUNTY. 

In  Justice's  Court. — Before  Harrison  P.  Nelson,  Justice. 

A.  B. 
vs. 

C.  D.  ; 

1855— April  2d. — This  day  comes  the  said  plaint- 
iff, who,  having  made  oath  that  there  is  dan- 
ger that  his  demand  against  C.  D.  will  be 
lost,  unless  the  said  defendant  be  held  to  bail, 
and  states  under  oath  the  cause  of  such  dan- 
ger, and  it  appearing  satisfactorily  that  there 
is  reason  to  apprehend  such  loss,  a  warrant  is 
issued,  returnable  in  case  of  special  bail, 
April  7th,  instant,  at  10  o'clock,  A.  M.,  and 
delivered  to  Charles  Haynes,  constable,  to 
execute.  Defendant  brought  into  court  forth- 
with, by  constable  Haynes,  and  warrant  re- 
turned executed  accordingly,  April  2d,  1855. 
Constable's  fees,  35  cents.  Plaintiff  claims 


Plaintiffs  demand,  $75.00. 
On  promissory  note. 


PLAINTIFF'S  COSTS. 
Justice's  Fees. 

One  oath, 6| 

Warrant, 25 

Docketing  suit, 12_! 

Entering  judgment, 25 


Oath  and  execution, 31 

Oath  and  ca.  sa., 25 

Constable's  Fees. 
On  summons, 35 


Serving  and  returning  execu- 
tion   ..50 


132 


FORMS  OF  DOCKET  ENTRIES. 


[PART  1, 


April  2d,  1855.  —  Execution 
sworn  out  by  plaintiff,  and  deliv- 
ered to  constable  Buell,  to  exe- 
cute. 

June  12th,  1855.— Execution  re- 
turned by  constable  Buell.  "  No 
property  found." 

June  15th,  1855.— Ca.  Sa.  issued 
on  oath  of  plaintiff,  and  delivered 
to  constable  Buell,  to  execute. 


of  the  defendant,  $72  10,  on  promissory  note, 
drawn  by  said  defendant,  in  favor  of  John 
Tyler,  and  by  him  assigned  to  said  plaintiff, 
for  $70,  with  interest,  and  bearing  date  Octo- 
ber 1st,  1854,  and  due  90  days  after  date. 

Defendant  says  he  cannot  deny  the  plaint- 
iff's demand.  The  said  promissory  note  is, 
therefore,  offered  in  evidence  by  the  plaint- 
iff. 

Whereupon,  it  is  considered  by  the  court, 
that  the  said  plaintiff  have  and  recover  of  the 
said  defendant,  the  sum  of  seventy-two  dol- 
lars and  ten  cents,  for  his  demand  against  the 
said  defendant,  with  costs  of  suit  herein, 
taxed  aione  dollar  and  three  and  three-fourths 


cents. 


HARRISON  P.  NEWMAN. 


3.    Where  Suit  is  brought  on  Promissory  Note  placed  in  the  hands  of 
the  Justice  for  Collection,  and  the  Parties  do  not  appear. 

STATE  OF  ILLINOIS,  ) 
Lake  COUNTY.       ) 

In  Justice's  Court — Before  Joseph  L.  "Williams,  Justice. 

A.B.) 

VSf      V  Demand  of  plaintiff,  $52.00,  on  promissory  note. 

C.  D.j 

1855 — April  2nd. — Summons  issued,  returnable 
the  7th  April  instant,  at  10  o'clock,  A.  M., 
and  delivered  to  Parnell  Munson,  constable, 
to  serve. 


PLAINTIFF'S  COSTS. 
Justice's  Fees. 


Summons  ....................  18f 

Docketing  suit  ...............  12J 

Entering  judgment  ...........  25 


Constable's  Fees. 
On  summons  .................  30 

April  27th,  1S55.  Execution 
issued,  and  delivered  to  constable 
Munson  to  serve. 

July  6th,  1865.  Execution  re- 
turned by  constable  Munson  sat- 
isfied, and  money  paid  to  plaintiff. 


April  5th. — Summons  returned  by  con- 
stable Munson.  Personally  served,  by  read- 
ing to  the  defendant,  the  4th  day  of  April, 
1855.  Constable's  fees,  30  cents. 

April  7th,  10  o'clock,  A.  M.— Demand  of 
the  plaintiff  being  upon  promissory  note  left 
for  collection,  which  is  drawn  by  the  defend- 
ant in  favor  of  the  said  plaintiff,  for  fifty 


CHAP.  10.]  FORMS  OF  DOCKET  ENTRIES.  133 

dollars,  with  interest,  dated  October  6th,  1854,  and  due  thirty  days 
after  date.  The  defendant  being  called,  comes  not,  but  fails  to  appear 
and  show  cause  why  judgment  should  not  be  rendered.  Whereupon 
it  is  considered  by  the  court,  that  the  said  plaintiff  have  and  recover 
of  the  said  defendant  the  sum  of  fifty-one  dollars  and  fifty  cents,  for 
his  demand  against  the  said  defendant,  and  costs  of  suit  herein,  taxed 
at  eighty-seven  and  a  half  cents.  JOSEPH  L.  WILLIAMS. 

In  case  of  suit  upon  notes  placed  in  the  hands  of  the  justice  for  col- 
lection, the  cause  should  not  be  dismissed,  although  the  plaintiff  may 
fail  to  appear.1  And  in  such  case,  should  the  defendant  set  up  any 
defense  to  the  note,  it  will  be  proper  for  the  justice  to  continue  the 
cause  to  another  day,  if  he  should  deem  it  essential  to  justice  so  to  do, 
and  notify  the  plaintiff  thereof. 

In  the  three  preceding  examples',  the  costs  attending  the  suit  have 
been  set  down  in  the  margin,  for  the  purpose  of  illustrating  the  man- 
ner proper  to  be  observed  in  taxing  costs,  which  will  doubtless  suffice 
as  a  precedent  for  all  cases. 

4.    Where  the  Parties  agree  to  have  a  Difference  decided  by  the  Justice 

without  process. 
STATE  OF  ILLINOIS,  ") 
Lake  COUNTY.       j 
In  Justice's  Court — Before  Amos  S.  Waterman,  Justice. 

A  B  1 

(  Demand  of  plaintiff,   $50  J30,  for  goods  sold  and 

VS          i 

'      I  delivered. 

L.  1).  j 

1855 — October  2d. — This  day  comes  the  said  A. 
B.  and  C.  D.,  and  agree  to  have  the  matter 
in  difference  between  them  decided  by  me 
without  process. 

Plaintiff  claims  of  the  defendant  fifty  dol- 
lars for  goods  sold  and  delivered,  and  files  a 
bill  of  items. 

Defendant  denies  the  plaintiff 's  account, 
and  claims  that  the  same,  if  correct,  has 
been  fully  paid. 

E.  F.  and  G.  II.  sworn  as  witnesses  on 
the  part  of  the  plaintiff,  and  L.  M.  swdrn 
on  the  part  of  the  defendant. 

(1)  Rev.  Stat.  318,  Sec.  24. 


134  FORMS    OF    DOCKET    ENTRIES.  [PART  1, 

Upon  hearing  the  evidence  in  the  cause,  it  is  considered  by  the  court, 
that  the  said  plaintiff  have  and  recover  of  the  said  defendant  the  sum 
of  twenty-five  dollars,  for  his  demand  against  the  said  defendant,  with 

costs  of  suit  herein,  taxed  at cents. 

AMOS  S.  WATERMAN. 

5.    Where  Judgment  is  by  Confession. 

STATE  OF  ILLINOIS, 
Lake  COUNTY. 

In  Justice's  Court — Before  John  L.  Turner,  Justice. 

A  B.  1 

(  Plaintiff's  demand,  $25.00,  for  property  sold  and 
vs       /  • 

delivered. 
C.  D.J 

1855 — September  3d. — This  day  comes  the 
said  A.  B.  and  C.  D.  The  said  C.  D. 
waives  process,  and  enters  his  appearance 
herein,  and  confesses  that  he  is  indebted  to 
the  said  A.  B.  in  the  sum  of  twenty-five  dol- 
lars, and  the  said  parties  request  that  judg- 
ment may  be  rendered  accordingly  for  that 
amount.  Whereupon,  it  is  considered  by 
the  court,  .that  the  said  plaintiff  have  and 
recover  of  the  said  defendant,  the  sum  of 
twenty-five  dollars,  for  his  demand  against 
the  said  defendant,  and  the  costs  of  suit 

herein,  taxed  at cents. 

JOHN  L.  TURNER. 

6.    Where  proceeding  is  against  Garnishee,  after  execution  is  returned 
"  no  property  found." 

STATE  OF  ILLINOIS,  ") 
Lake  COUNTY,      j" 

In  Justice's  Court — Before  Hiram  Hugunin,  Justice. 

•       A.  B.  1 

vs.      I  Demand,  $50.00. 
C.  D.  j  Proceeding  by  Garnishee  summons. 
Garnishee  of  E.  F.  J 

1855 — September  3d. — Garnishee  summons  is- 
sued on  affidavit  of  the  said  A.  B.,  return- 


CHAP.  10.]  FORMS  OF  DOCKET  ENTRIES.  135 

able  forthwith,  and  delivered  to  Norman 
Brown,  constable,  to  serve.  Summons  re- 
turned by  constable  Brown  at  this  date, 
personally  served  by  reading  to  the  said  C. 
D.  Constable's  fees,  35  cents.  Whereas 
judgment  was  rendered  by  me  on  the  10th 
day  of  April,  A.I).  1855,  in  favor  of  the 
above  A.  B.,  and  against  E.  F.,  for  the  sum 
of  forty-eight  dollars  debt,  and  one  dollar  and 
fifty  cents,  costs  of  suit;  and  on  the  10th 
day  of  July,  A.D.  1855,  an  execution  was 
returned  by  Horace  Hinckley,  constable,  "no 
property  found."  The  above  named  C.  D.,  on 
examination  on  oath,  as  garnishee,  testifies, 
that  he  was  and  still  is  indebted  to  the  said 

E.  F.,  in  the  sum  of  fifty  dollars.     It  is  therefore  considered  by  the 
court,  that  the  plaintiff  have  and  recover  of  the  said  C.  D.,  as  garnishee 

of  the  said  E.  F.,  the  sum  of dollars  and cents,  being  the 

amount  of  judgment,  costs  and  interest  in  the  proceedings  aforesaid, 

together  with  the  costs  herein,  taxed  at . 

HIRAM  HUGUNIN. 

7.    Where  Administrators  or  Executors  are  Parties  to  a  Suit. 

STATE  OF  ILLINOIS, 
Lake  COUNTY. 

In  Justice's  Court — Before  L.  M.,  Justice. 
A.  B.  administrator  of  thel 
Estate  of  C.  D.,  deceased,  I  Demand,  $20.00,  for  property  purchased 

v$-  at  administrator's  sale. 

E.  F.  and  G.  H. 

(The  entries  will  then  follow  as  in  other  cases,  according  to  the  facts. ,) 

Where  an  executor  is  a  party,  he  will  be  described  thus  :  "  A.  B., 
executor  of  the  last  will  and  testament  of  C.  D.,  deceased."  When 
executors  or  administrators  are  defendants,  they  will,  of  course,  be 
described  in  the  same  manner  as  when  plaintiffs. 

8.  Minutes  of  Conviction  of  Witness  attached  for  Non-attendance. 
STATE  OF  ILLINOIS, 


COUNTY,      T ss' 


Be  it  remembered  that  on  the  —  day  of  — ,  18 — ,  John  Doe  is 
convicted  before  me,  E.  F.,    a  justice  of  the  peace  of  said  county, 


136  FORMS   OF   DOCKET   ENTRIES.  [PART.  1, 

for  his  non-attendance  as  a  witness  to  testify  in  a  suit  depending  before 
me,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is  defendant,  it  having  been 
made  to  appear  to  me  that  he  was  duly  subpo3naed  to  attend  as  a 
witness  in  said  suit,  and  the  said  John  Doe  not  having  purged  himself 
when  called  upon  by  me  to  show  cause  why  he  should  not  be  fined  for 
the  said  contempt ;  I  do,  therefore,  adjudge  and  determine  that,  for 
the  said  contempt  the  said  John  Doe  pay  a  fine  of  five  dollars,  and  that 
he  be  imprisoned  in  the  common  jail  of  said  county  until  he  pay  the 
fine  aforesaid,  or  until  he  be  duly  discharged  according  to  law. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this  —  day 
of  _,  18— .  E.  F.  [L.  s.] 

9.  Memorandum  to  be  entered  where  a  Cause  is  appealed. 

When  a  cause  is  appealed,  the  following  memorandum  should  be 
made  upon  the  docket : 

August  10,  1855.  The  above  named  defendant,  with  Alvin  Marsh 
as  his  security,  filed  his  bond  for  an  appeal  to  the  Circuit  court,  which 
bond  was  approved  by  me,  and  appeal  granted. 

August  12,  1855.  Bond,  transcript,  and  all  the  papers  in  the  case, 
this  day  filed  in  the  office  of  the  Clerk  of  the  Circuit  court. 

AMOS  S.  WATERMAN,  J.  P. 

11.  Entry  of  Acknowledgment  of  Chattel  Mortgage. 

A.  B.) 

to     V 
C.  D.) 

Mortgage  of  (here  describe  the  property,)  acknowledged  this 

day-  -of ,  18—. 

The  name  of  4the  mortgagor  will  be  inserted  in  place  of  A.  B.,  and 
the  name  of  the  mortgagee  in  place  of  C.  D.1 

(1)  Rev.  Stat.  9,  Sec.  2. 


CHAP.  11.]  JUDGMENTS.  137 


CHAPTER    XI. 

OF  JUDGMENT,  COSTS,  AND  FILING  TRANSCRIPT. 

I.  OP  JUDGMENTS. 
II.  OF  COSTS. 
III.  OF  FILING  TRANSCRIPT. 

I.    OF  JUDGMENTS. 

A  judgment  is  the  decision  or  sentence  of  the  law,  given  by  a  court 
of  justice,  or  other  competent  tribunal,  as  the  result  of  proceedings 
instituted  therein,  for  the  redress  of  an  injury. 

The  language  of  judgments,  therefore,  is  not  that  "  it  is  decreed  " 
or  "  resolved  "  by  the  court ;  but  "  it  is  considered  "  (consideraturn 
est  per  curiam)  that  the  plaintiff  recover  his  debt,  damages,  or  posses- 
sion, as  the  case  may  require,  or  that  the  defendant  do  go  without  day.1 
This  implies  that  the  judgment  is  not  so  much  the  decision  of  the  court 
us  the  sentence  of  the  law  pronounced  by  the  court  after  due  delibera- 
tion and  inquiry.2  To  be  valid,  a  judicial  judgment  must  be  given  by 
a  competent  tribunal,  at  a  time  and  place  duly  appointed,  incomformity 
to  law.  A  judgment  would  be  null  if  the  justice  had  not  jurisdiction 
of  the  matter;3  or  if,  having  such  jurisdiction,  he  exercised  it  when  there 
was  no  court  held,  or  out  of  his  district ;  or  if  he  rendered  judgment  before 
the  cause  was  prepared  for  a  hearing.  The  judgment  must  confine 
itself  to  the  question  raised  before  the  court,  and  cannot  extend 
beyond  it.4 

There  are  four  kinds  of  judgments  in  civil  cases,  namely :  1.  When 
the  facts  are  admitted  by  the  parties,  but  the  law  is  disputed ;  as  in 

(1)  IBouv.L.D.  title  "judgment."       (2)  3  Bl.  Com.  395.       (3)  See  ante,  p.  29;  4  Scam.  371. 
(4)  1  Bouv.  L.  D.  title  "judgment." 


138  JUDGMENTS.  [PART  1, 

case  of  judgment  upon  demurrer.  2.  When  the  law  is  presumed  to 
be  admitted,  but  the  facts  disputed ;  as  in  case  of  judgment  upon  verdict. 
3.  When  both  the  law  and  the  facts  are  admitted  by  confession  ;  as  in 
case  of  coynovit  actionem,  (a  confession  or  acknowledgment  of  the 
action)  on  the  part  of  the  defendant ;  or  a  nolle  prosequi  (proceed  no 
further)  on  the  part  of  the  plaintiff.  4.  By  default  of  either  party  in 
the  course  of  legal  proceedings.  But  under  our  statute,  where  the 
defendant  fails  to  appear,  it  will  not  be  taken  as  a  confession  of  the 
plaintiff's  demand.  The  plaintiff  is  nevertheless  bound  to  prove  his 
demand  the  same  as  if  the  defendant  had  appeared  and  denied  the 
same.1 

All  these  species  of  judgments,  before  mentioned,  are  either  inter- 
locutory or  final.  Interlocutory  judgments  are  such  as  are  given  in 
in  the  middle  of  a  cause  upon  some  plea,  proceeding,  or  default  which 
is  only  intermediate,  and  does  not  finally  determine  or  complete  the  suit. 
Of  this  nature  are  all  judgments  for  the  plaintiff  upon  pleas  in  abate- 
ment of  the  suit  or  action ;  in  which  it  is  considered  by  the  court,  that 
the  defendant  do  answer  over,  respondeat  ouster  ;  that  is,  put  in  a  more 
substantial  plea.  It  is  easy  to  observe  that  the  judgment  here  given  is 
not  final,  but  merely  interlocutory ;  for  there  are  afterwards  further 
proceedings  to  be  had,  when  the  defendant  has  put  in  a  better  answer.2 
Final  judgments  are  such  as  at  once  put  an  end  to  the  action,  by 
declaring  that  the  plaintiff  has  either  entitled  himself,  or  has  not,  to 
recover  the  remedy  he  sues  for.8 

The  power  of  the  justice  in  relation  to  rendering  judgment,  is  a 
matter  of  statutory  regulation,  and  has  no  doubt  been  already  suffi- 
ciently recited  or  referred  to  in  different  portions  of  the  preceding  pages, 
to  give  the  justice  a  full  and  fair  idea  upon  this  subject,  should  he  not 
have  already  gained  a  sufficient  knowledge  in  relation  thereto  from  the 
statute  itself.  The  following  general  suggestions,  may  therefore  suffice 
in  closing  this  division  of  the  present  chapter. 

Nothing  will  be  presumed  against  a  judgment,  and  it  will  be  regarded 
as  right,  until  the  contraiy  appears.4 

A  judgment  against  one  member  of  a  firm,  for  a  debt  due  by  the 
firm,  is  a  bar  to  a  recovery  against  the  other  members.5 

A  party  that  has  been  compelled  to  pay  money  by  compulsion,  under 

(1)  Rev.  Stat.  318,  Sec.  23.  (2)  3  Bl.  Com.  397. 

(3)  3  Id.  398.  (4)  3  Scam.  117. 

(5)  2  Gil.  414. 


CHAP.  11.]  COSTS.  139 

the  judgment  and  process  of  a  court  of  competent  jurisdiction,  cannot 
be  compelled  to  pay  the  same  a  second  time.1 

The  dismissal  of  a  suit  by  a  justice  of  the  peace,  is  not  such  a  judg- 
ment as  will  bar  a  subsequent  suit  for  the  same  demand,  or  for  a  differ- 
ent cause  of  action.2  A  justice  of  the  peace  has  no  authority  to  render 
a  judgment  against  any  defendant  who  is  not  served  with  process, 
although  one  of  the  defendants  is  regularly  served.3 

The  admission  of  a  party  in  an  action  before  a  justice  of  the  peace, 
that  a  claim  produced  against  him  is  correct,  is  not  confession  of  judg- 
ment ;  he  may  nevertheless  prove  payment  or  set-off;  and  such  admis- 
sion will  not  deprive  him  of  his  right  of  appeal.4 


II.     OF    COSTS. 

Costs  are  the  expenses  of  a  suit,  or  action,  which  may  be 'recovered 
by  law  from  the  losing  party.  At  common  law,  neither  the  plaintiff 
nor  the  defendant  could  recover  costs  as  is  now  allowed  by  statute.  In 
actions  where  damages  were  given,  costs  were  taken  into  account,  and 
included  in  the  amount  of  damages.  But  because  those  damages  were 
frequently  inadequate  to  the  plaintiff's  expenses,  a  provision  was  finally 
made,  by  statute,  for  costs.6  In  suits  before  justices  of  the  peace,  costs 
can  only  be  recovered,  where  expressly  given  by  the  statute.  As  we 
have  seen,  the  statute  provides  for  costs  in  the  following  cases  :  Where 
the  plaintiff,  or  his  agent,  fails  to  appear  at  the  time  appointed  for  trial, 
and  the  suit  in  consequence  is  dismissed,  the  plaintiff  must  pay  the 
costs.6  Where  a  case  is  continued  to  another  day,  the  party  applying 
for  such  continuance  may  be  taxed  with  costs  occasioned  thereby.7 
Where  the  parties  appear,  and  the  justice  shall  give  judgment  against 
the  party  who  shall  be  proved  to  be  indebted  to  the  other,  the  costs  of 
suit  will  follow  the  judgment  ;8  but  when  neither  party  appears  to  be 
'indebted  to  the  other,  then  the  judgment  will  be  against  the  plaintiff 
for  the  costs  of  suit  only.9  In  case  of  a  jury  trial,  the  justice  must 
enter  judgment  upon  the  verdict  of  the  jury.10 

(1)4  Gil.  354.  (2)  lid.  667. 

(3)  1  Scam.  690.  (4)  13  111.  313. 

(5)  3  Bl.  Com.  400.  (6)  Ante,  p.  58;  Rev.  Stat.  318,  Sec.  24. 

(7)  Ante,  p.  93;  Rev.  Stat.  318,  See.  27.  (8)  Ante,  p.  95;  Rev.  Stat.  319,  Sec.  28. 

(9)  Ibid.  (10)  Ante,  p.  96;  Rev.  Stat.  321,  Sec.  44. 


140  COSTS.  [PART  1, 

Where  a  matter  in  difference  between  parties  to  a  suit  is  referred  to 
arbitrators,  the  justice  must  note  the  award  upon  his  docket,  and  give 
judgment  according  thereto.1 

Justices'  Fees  in  Civil  Cases. 

Rev.  Stat.  246,  Sec.  17.  "  For  every  warrant,  summons,  or  sub- 
poena, eighteen  and  three-fourths  cents. 

For  each  continuance,  twelve  and  a  half  cents. 

Administering  an  oath,  six  and  a  fourth  cents. 

Issuing  dedimus  to  take  depositions,  twenty-five  cents. 

Taking  each  deposition  when  required,  for  every  seventy-two  words, 
twelve  and  a  half  cents. 

Entering  judgment,  twenty-five  cents. 

Issuing  execution,  twenty-five  cents. 

Entering  security  on  docket,  twenty-five  cents. 

Scire  facias  to  be  served  on  security,  twenty  five  cents. 

Notification  to  each  referee,  twenty-five  cents. 

Entering  the  award  of  referees,  thirty-seven  and  a  half  cents. 

Entering  appeal  from  justice's  judgment,  twenty-five  cents. 

For  each  transcript  of  the  judgment  and  proceedings  before  the 
justice  on  appeal,  twenty-five  cents. 

Issuing  process  of  attachment,  and  taking  bond  and  security,  seventy- 
five  cents. 

Entering  judgment  on  the  same,  twenty-five  cents. 

Docketing  each  suit,  twelve  and  a  half  cents. 

Taking  the  acknowledgment  or  proof  of  a  deed  or  other  instrument 
of  writing,  twenty-five  cents. 

For  each  precept,  on  forcible  entry  and  detainer,  fifty  cents. 

On  trial,  per  day,  two  dollars. 

Making  complete  copy  of  proceedings  thereon,  two  dollars. 

For  each  jury  warrant,  twenty-five  cents. 

For  each  marriage  ceremony  performed,  one  dollar. 

For  each  certificate  thereof,  twenty-five  cents. 

For  administering  the  oath  to  the  finder,  or  taker  up  in  cases  of  estrays, 
&c.,  making  an  entry  thereof,  with  the  report  of  the  appraisers,  and 
making,  and  transmitting  a  certificate  thereof  to  the  clerk  of  the  county 
commissioners'  court,  fifty  cents." 

(1)  Ante,  p.  109;  Rev.  Stat,  321,  Sec.  43. 


ClIAP.    11.]  FILING    TRANSCRIPT.  141 

For  taking  acknowledgment  of  chattel  mortgage,  and  entering  the 
same  on  his  docket,  the  justice  will  receive  twenty-five  cents.1 

Jurors'  Fees. 

Each  juror  in  a  civil  cause  before  a  justice  of  the  peace,  is  allowed 
twenty-five  cents.2 

Witnesses'  Fees. 

Each  witness,  when  summoned,  according  to  the  statute,  is  allowed 
fifty  cents  for  attending  on  each  trial.8 

Every  witness,  when  attending  for  the  purpose  of  having  his  deposi- 
tion taken,  per  day,  fifty  cents.4 

Arbitrators'  Fees. 

For  every  arbitrator,  or  referee,  for  each  day  he  shall  be  necessarily 
employed  in  making  up  his  award  in  cases  before  justices  of  the  peace, 
one  dollar.5 


III.    OF  FILING  TRANSCRIPT. 

Whenever  it  appears,  by  the  return  of  any  execution  issued  pursuant 
to  the  statute,6  that  the  defendant  has  not  personal  property  sufficient 
to  satisfy  the  debt  and  costs  within  the  county  in  which  judgment  was 
rendered,  and  it  is  desired  by  the  plaintiff  to  have  the  same  levied  on 
real  property,  in  that  or  any  other  county,  it  is  lawful  for  the  justice  to 
certify  to  the  clerk  of  the  circuit  court  of  the  county  in  which  such 
judgment  was  rendered,  a  transcript,  which  must  be  filed  by  said  clerk, 
and  the  judgment  will,  thenceforward,  have  all  the  effect  of  a  judgment 
of  the  said  circuit  court,  and  execution  may  issue  thereon,  out  of  that 
court,  as  in  other  cases.7 

By  an  act  approved  February  27th,  1847, 8  it  is  enacted,  "  Sec.  3. 
Transcripts  hereafter  filed  shall  contain  a  copy  of  the  original  and  each 
subsequent  summons  or  process  issued  by  the  justice  of  the  peace,  the 
return  of  the  officer  or  officers  thereon,  the  judgment  and  execution  or 
executions  issued  thereon,  with  the  return  of  the  officer  or  officers  upon 

(1)  Rev.  Stat.  92,  Sec.  2.  (2)  Id.  311,  Sec.  20.         (3)  Ante,  p.  80;  Rev.[Stat.  320,  Sec.38. 

(4)  Id.  247,  Sec.  20.  (5)  Id.  248,  Sec.  22.          (6)  See  Id.  323,  Sec.  54. 

(7)  Id.  323,  Sec.  57.  (8)  See  Sess.  Laws,  1847,  p.  56. 


142  FILING    TRANSCRIPT.  [PART  1, 

the  same  ;  [and  no  execution  shall  hereafter  be  issued  upon  a  transcript, 
unless  the  same  be  made  conformable  to  this  act. 

"  Sec.  4.  Every  transcript  desired  to  be  used  for  the  purposes  men- 
tioned in  this  act,  shall  be  certified  by  the  justice  of  the  peace  making 
the  same,  to  be  truly  copied  from  the  files  and  books  of  his  office." 
Which  act  took  effect,  by  its  terms,  on  the  first  day  of  June,  1847. 
The  following  will  be  the  proper  method  of  making  and  certifying  such 
transcripts,  to  be  varied  according  to  circumstances  : 

Form  of  Transcript  of  Proceedings  before  a  Justice,  to  be  filed  in 
Circuit  Clerk's  Office,  to  become  lien  on  real  estate. 

Transcript  of  proceedings  lately  had  before  Charles  Hall,  Esquire, 
a  justice  of  the  peace  in  and  for  the  county  of  LAKE,  in  the  State  of 
Illinois,  between  A.  B.  plaintiff,  and  C.  D.  defendant. 

(Here  insert  the  summons  or  process  preceding  the  judgment,  and 
then  say :) 

Upon  which  summons,  (or  other  process,  as  the  case  may  be),  there 
appears  the  following  indorsement : 

(Here  insert  the  constable's  return.} 

(After  the  constable's  return,  a  true  copy  from  the  docket  of  the 
justice,  in  relation  to  the  proceedings  in  the  cause  will  then  be  given, 
which  of  course  will  show  the  issuing  and  returning  of  the  execution  ; 
then  say:) 

Upon  which  execution,  issued  and  returned  as  aforesaid,  there  appears 
the  following  indorsement : 

(Here  insert  such  indorsements  as  may  have  been  made  by  the  con- 
stable in  full.} 

To  all  of  which  the  justice  will  add  the  following  certificate  : 

STATE  OF  ILLINOIS,  ) 
Lake  COUNTY,     j 

I,  Charles  Hall,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify  that  the  foregoing  transcript  is  truly  copied  from  the  files  and 
books  of  my  office.  In  witness  thereof,  I  have  hereunto  set  niy  hand, 

this day  of ,  A.D.,  18—. 

CUARLES  HALL,  J.  P. 


CHAP.  12.]  APPEALS.  143 


CHAPTER    XII. 

OF  APPEALS  AND  WRIT  OF  CEETIOEARI. 


I.  Or  APPEALS. 
II.  OF  CERTIORARI. 


I.    OF  APPEALS. 


Rev.  Stat.  323,  Sec.  58.  "  Appeals  from  judgments  of  justices  of  the 
peace  to  the  circuit  court  shall  be  granted  in  all  cases,  except  on  judg- 
ment confessed  :  Provided,  The  party  praying  for  an  appeal  shall, 
within  twenty  days  from  the  rendering  of  the  judgment  from  which  he 
desires  to  take  an  appeal,  enter  into  bond  with  security,  to  be  approved 
and  conditioned  as  hereinafter  provided. 

'  Sec.  59.     The  bond  required  to  be  given,  shall  be  in  substance  as 
follows  : 

"  Know  all  men  by  these  presents,  that  we,  A.  B.  and  C.  D.,  are 
held  and  firmly  bound  unto  E.  P.  in  the  penal  sum  of  (here  insert 
double  the  amount  of  judgment  and  costs)  dollars,  lawful  money  of  the 
United  States,  for  the  payment  of  which  well  and  truly  to  be  made,  we 
bind  ourselves,  our  heirs  and  administrators,  jointly,  severally  and  firmly, 
by  these  presents. 

"  Witness  our  hands  and  seals,  this day  of ,  18 . 

"  The  condition  of  the  above  obligation  is  such,  that  whereas  the 

said  E.  F.  did,  on  the  -  -  day  of ,  A.D.  18—,  before , 

a  justice  of  the  peace  for  the  county  of  ,  recover  a  judgment 

against  the  above  bounden  A.  B.,  for  the  sum  of dollars,  from 

which  judgment  the  said  E.  F.  has  taken  an  appeal  to  the  circuit  court 


144  APPEALS.  [PART!, 

'  of  the  county  of aforesaid  and  State  of  Illinois.     Now,  if  the 

said  A.  B.  shall  prosecute  his  appeal  with  effect,  and  shall  pay  whatever 
judgment  may  be  rendered  by  the  court  upon  dismissal  or  trial  of  said 
appeal,  then  the  above  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  effect. 

[L.  S.] 
[L.  S.] 
[L.  S.] 

"  Approved  by  me  at  my  office,  this  —  day  of ,  18 — . 

L.  M.,  /.  P. 

"  Sec.  60.  The  party  desiring  such  appeal,  may  file  his  bond  in 
the  office  of  the  justice,  who  shall  have  rendered  the  judgment;  such  bond 
to  be  approved  by  such  justice,  whose  duty  it  shall  be  to  suspend  all  pro- 
ceedings in  the  case  ;  and  if  execution  shall  have  been  issued,  he  shall 
recall  the  same,  and  who  shall,  within  twenty  days  after  receiving  and 
approving  of  the  appeal  bond,  file  the  same  in  the  office  of  the  clerk  of 
the  circuit  court,  together  with  all  the  papers  and  transcript  of  the  judg- 
ment he  had  given,  with  a  certificate  under  his  hand  that  the  said 
transcript  and  papers  contain  a  full  and  perfect  statement  of  all  the 
proceedings  before  him. 

"  Sec.  61.  Or  the  appealing  party  may  file  his  bond  in  the  office  of 
the  clerk  of  the  circuit  court  of  the  proper  county,  within  the  time 
aforesaid,  which  bond  shall  be  approved  by  the  clerk ;  upon  the  filing 
and  approval  of  which  bond  the  clerk  shall  issue  a  supcrsedeas  enjoin- 
ing the  justice  and  constable  from  proceeding  any  further  in  said  suit, 
and  suspending  all  proceedings  in  relation  thereto ;  and  shall  issue  a 
summons  to  the  appellee  to  appear  at  the  term  of  the  court  to  which  the 
appeal  is  returnable,  which  summons  shall  be  served  and  returned  as  in 
other  cases. 

"  Sec.  62.  So  soon  as  the  clerk  shall  issue  a  supersedeas,  as  afore- 
said, the  justice  who  gave  the  judgment,  and  any  constable  in  whose 
hands  an  execution  or  other  process  may  be,  in  relation  thereto,  shall 
suspend  all  further  proceedings  thereon ;  and  the  said  justice  shall 
return  all  the  papers,  and  a  transcript  of  the  judgment  he  had  given, 
to  the  clerk  of  said  court,  with  a  certificate,  under  his  hand,  that  the 
said  transcript  and  papers  contain  a  full  and  perfect  statement  of  all 
the  proceedings  before  him. 

"  Sec.  63.  One  or  more  plaintiffs  or  defendants,  in  causes  decided 
by  justices  of  the  peace,  shall  be  allowed  the  right  of  appeal  to  the 


CHAP.  12.]  APPEALS.  145 

circuit  court  without  the  consent  of  the  others;  and  when  one  of  several 
appeals,  the  supersedeas  shall  issue,  directing  a  suspension  of  all  further 
proceedings  upon  the  judgment,  as  though  all  had  joined  in  the  appeal. 

"  Sec.  64.  When  an  appeal  bond  shall  be  executed  by  one  of  several 
parties  from  tlfe  judgment  of  a  justice  of  the  peace,  the  clerk  of  the  circuit 
court  shall  issue  a  summons  against  the  other  parties,  notifying  them  of 
the  appeal  in  the  said  circuit  court,  and  requiring  them  to  appear  and 
abide  by  and  perform  the  judgment  of  the  court  in  the  premises ;  which 
summons  shall  be  served  as  other  process  issued  in  appeal  cases ;  and 
in  case  such  summons  shall  be  returned,  that  parties  are  not  found,  the 
cause  shall  at  the  first  term  of  the  court  be  continued;  but  at  the  second 
term  shall  be  tried ;  and  the  court  shall  have  power  to  give  the  same 
judgment  in  appeals  taken  under  the  provisions  of  this  chapter  as  though 
all  the  parties  to  the  judgment  had  joined  in  the  appeal. 

"  Sec.  65.  If,  upon  the  trial  of  any  appeal,  the  bond  required  to 
be  given  shall  be  adjudged  informal,  or  otherwise  insufficient,  the  party 
who  shall  have  executed  such  bond  shall  in  no  wise  be  prejudiced  by 
reason  of  such  informality  or  insufficiency;  provided,  he  will  in  a  rea- 
sonable time,  to  be  fixed  by  the  court,  execute  and  file  a  good  and  suf- 
ficient bond. 

"  Sec.  66.  Upon  the  trial  of  all  appeals  before  the  circuit  court,  no 
exception  shall  be  taken  to  the  form  or  service  of  the  summons  issued 
by  the  justice  of  the  peace,  nor  to  any  proceedings  before  him  ;  but  the 
court  shall  hear  and  determine  the  same  in  a  summary  way,  according 
to  the  justice  of  the  case,  without  pleading  in  writing. 

'  Sec.  67.  If  it  shall  appear,  however,  that  the  justice  had  no  juris- 
diction of  the  subject-matter  of  the  suit,  the  same  shall  be  dismissed  at 
the  cost  of  the  plaintiff. 

•  Sec.  68.  The  plaintiff  in  the  justice's  court  shall  be  plaintiff  in  the 
circuit  court,  on  the  trial  of  the  appeal,  and  the  rights  of  the  parties 
shall  be  the  same  as  in  original  actions. 

"  Sec.  60.  Parties  on  the  trials  of  appeals  in  the  circuit  court  shall 
have  the  benefit  of  the  provisions  of  the  thirty-ninth,  fortieth  and  forty- 
first  sections  of  this  chapter,  as  fully  as  in  trials  before  justices  of  the 
peace. 

"  Sec.  70.  The  security  in  any  appeal  bond  shall  be  liable  thereon 
for  the  amount  of  the  original  judgment,  and  all  costs  thereon,  in  case 
the  said  appeal  be  dismissed,  and  shall  be  liable  also  on  said  bond  for  what- 
ever judgment  maybe  rendered  by  the  circuit  court,  in  case  the  original 
judgment  be  affirmed  by  said  circuit  court,  cither  in  whole  or  in  part," 


146  CERTIORARI.  [PART  1, 

II.    OF  CERTIORARI.1 

A  writ  of  certiorari  is  a  writ  issuing  from  a  superior  court,  directed 
to  one  of  inferior  jurisdiction,  commanding  the  latter  to  certify  and  re- 
turn to  the  former,  the  record  in  the  particular  case. 

Rev.  Stat.  325,  Sec.  72.  "  The  judges  of  the  circuit  and  probate 
courts  shall  have  power  within  their  respective  jurisdictions,  and  it  shall 
be  their  duty,  upon  application  made  as  hereinafter  mentioned,  to  grant 
writs  of  certiorari,  to  remove  causes  from  before  justices  of  the  peace, 
into  the  circuit  court,  who  shall  indorse  an  order  for  the  same,  upon  the 
petition  of  the  party  praying  such  writ ;  and  on  producing  the  same  to 
the  clerk  of  the  circuit  court,  he  shall  issue  said  writ  in  conformity  to 
the  provisions  of  this  chapter. 

"  Sec.  73.  No  writ  of  certiorari  shall  issue  after  the  expiration  of 
six  months  from  the  time  of  the  rendition  of  judgment. 

"  Sec.  74.  Before  any  writ  of  certiorari  shall  issue,  the  party  apply- 
ing therefor  shall  give  bond,  with  security,  in  the  same  manner  and  with 
the  same  conditions,  and  when  the  same  shall  be  defective,  may  be  per- 
fected as  bonds,  in  cases  of  appeals  from  justices  of  the  peace.  The 
writ  of  certiorari  shall  require  the  justice  to  certify  to  the  circuit  court 
a  transcript  of  the  judgment  and  other  proceedings  had  before  him  ; 
and  in  no  case  shall  the  justice  be  required  to  send  up  a  minute  or  mem- 
orandum of  the  evidence  given  before  him ;  but  upon  the  return  of 
said  writ,  such  proceedings  shall  be  had  thereon,  as  in  cases  of  appeals. 

"  Sec.  75.  The  petition  on  application  for  writs  of  certiorari  shall 
set  forth,  and  show  upon  the  oath  of  the  applicant,  that  the  judgment 
before  the  justice  of  the  peace  was  not  the  result  of  negligence  in  the 
party  praying  such  writ ;  that  the  judgment,  in  his  opinion,  is  unjust 
and  erroneous,  setting  forth  wherein  the  injustice  and  error  consists,  and 
that  it  was  not  in  the  power  of  the  party  to  take  and  appeal  in  the  ordi- 
nary way,  setting  forth  the  particular  circumstances  which  prevented 
him  from  so  doing. 

"Sec.  76.  The  justice  of  the  peace,  constable  and  other  persons 
concerned,  shall,  as  soon  as  the  writ  of  certiorari  shall  be  served,  stay 
all  further  proceedings  in  that  case,  until  the  further  order  of  the  cir- 
cuit court. 

"  Sec.  77.  If  the  judgment  of  the  justice  shall  be  reversed  by  the 
circuit  court,  in  whole  or  in  part,  such  reversal  shall  not  vitiate  any  sale 
on  execution,  which  shall  have  been  effected  before  the  issuing  of  the 

(1)  Certiorari,  to  be  certified  of ;  to  be  informed  of  ;  1  Bouv.  L.  D.  215. 


CHAP.  12.  CERTIORARI. 


147 


writ  of  certiorari;  but  in  such  cases,  the  circuit  court  shall  have  power 
to  assess  the  damages  which  shall  have  accrued  in  consequence  of  such 
sale,  and  to  cause  judgment  to  be  entered  or  a  deduction  made  therefor ; 
and  in  all  cases  of  a  partial  reversal  of  judgment,  either  in  case  of 
appeals  or  certiorari,  the  court  shall  have  power  to  apportion  the  costs 
between  the  parties  according  to  justice." 

A  party  who  has  not  been  guilty  of  negligence  by  omitting  to  take 
an  appeal  from  the  judgment  of  a  justice  of  the  peace  in  proper  time, 
is  entitled  to  take  the  cause  to  the  circuit  court  by  certiorari.1 

The  petition  must  set  forth  that  the  judgment  complained  of  was  not 
the  result  of  negligence  on  the  part  of  the  petitioner,  and  that,  in  his 
opinion,  it  is  unjust;  setting  forth  wherein  the  injustice  consists.  It 
must  also  allege  that  it  was  not  in  the  power  of  the  party  to  take  an 
appeal  in  the  ordinary  way,  and  set  forth  particularly  the  circumstances 
that  prevented  him  from  so  doing.2 

The  court  will  take  into  consideration  the  condition  of  a  party  where 
he  shows  in  his  petition  circumstances  that  prevented  his  using  dilligence : 
as,  that  he  was  a  physician,  and  was  necessarily  attending  upon  patients 
dangerouly  ill,  &c.  &c. ;  or,  that  he  was  sick  at  the  time  the  judgment 
was  rendered  against  him,  and  unable  to  attend  court.3 

Where  a  suit  is  taken  up  by  certiorari,  the  trial  is  to  be  de  novo,  as 
m  cases  of  appeal,  and  no  formal  return  is  required  to  the  writ ;  and  if 
the  writ  is  served  and  returned,  and  its  mandate  is  not  complied  with, 
an  attachment  may  be  issued  against  the  justice.4 

The  dismissal  of  an  appeal,  or  certiorari,  is  equivalent  to  an  affirm- 
ance of  the  judgment,  so  as  to  entitle  the  party  to  claim  a  forfeiture  of 
the  bond,  and  have  his  action  therefor. 

The  condition  of  a  certiorari  bond,  should  be  as  broad  as  the  statute ; 
but  a  general  motion  to  dismiss,  will  not  reach  a  defect  in  the  bond  :  the 
objection  should  be  specially  taken.5 

[t  is  held  that  the  circuit  courts  have  power  to  award  a  writ  of  cer- 
tiorari to  all  inferior  tribunals,  wherever  it  is  shown  that  they  have  ex- 
ceeded the  limits  of  their  jurisdiction,  or  in  cases  where  they  have  pro- 
ceeded illegally,  and  no  appeal  is  allowed,  and  no  other  mode  of 
reviewing  their  proceedings  is  directly  provided.6 

!o!  ^  JJJ-  J?f '  ,  (2)1  Scam.  264,  566;  4  Gil.  363  ;14I11.35. 

111.  144  ;  14  Id.  3o  ;  2  Gil.  65.     (4)  12  111.  143. 

(6)  13  111.  660  ;  14  111.  381. 


148  EXECUTI9N.  [PART  1. 


CHAPTER   XIII. 

OF  EXECUTION  AND   GAENISHMENT. 

. 

I.  OF  THE  EXECUTION,  ITS  OFFICE  AND  NATURE. 
II.  OF  EXECUTIONS  AGAINST  THE  GOODS  AND  CHATTELS. 

III.  OF  EXECUTIONS  AGAINST  THE  BODY. 

IV.  OF  GARNISHMENT. 

I.    OF  THE  EXECUTION,  ITS  OFFICE  AND  NATURE. 

An  execution  is  a  writ  which  authorizes  the  officer  to  whom  it  is 
directed,  to  carry  into  effect  the  final  judgment  of  a  court  or  other  juris- 
diction. A  distinction  is  made  between  an  execution  which  is  used  to 
make  the  money  due  on  a  judgment  out  of  the  property  of  the  defen- 
dant, and  which  is  called  a  final  execution ;  and  one  which  tends  to  an 
end,  but  is  not  absolutely  final,  as  a  capias  ad  satisfaciendum,1  by  vir- 
tue of  which  the  body  of  the  defendant  is  taken,  to  the  intent  that  the 
plaintiff  shall  be  satisfied  his  debt,  &c.,  the  imprisonment  not  being  ab- 
solute, but  until  he  shall  satisfy  the  plaintiff's  debt.2  Hence,  the  for- 
mer is  properly  styled  an  execution  against  the  goods  and  chattels,  and 
the  latter  an  execution  against  the  body. 

fl.    OF  EXECUTIONS  AGAINST  THE  GOODS  AND  CHATTELS. 

No  execution  can  be  issued  by  a  justice  of  the  peace,  until  after  the 
expiration  of  twenty  days  from  the  date  of  the  judgment  on  which  such 
execution  is  issued,  unless  the  party  applying  for  the  same,  or  the  agent 
of  such  party,  shall  make  oath  that  he  believes  that  the  debt  of  sucli 
party  will  be  lost,  unless  execution  be  issued  forthwith.  If  such  oath 

(1)  Commonly  called  a  "  ca.  fa.,"  being  an  abbreviation  of  the  term. 

(2)  Sec  1  Bouv.  L.  D.,  title  "  Execution." 


CHAP.  12.]  EXECUTION.  149 

be  made,  then  the  execution  can  be  issued  immediately  and  levied;  but 
no  sale  of  any  property,  under  such  execution,  can  take  place  within 
twenty  days  from  the  date  of  the  judgment ;  nor  can  the  issuing  of  such 
execution  deprive  either  party  of  the  right  to  appeal.1 

Form  of  Oath,  for  Execution  to  issue  forthwith. 

You  do  swear  that  you  believe  that  the  debt  upon  which  judgment  has 

this  day  been  rendered  in  your  favor,  against  C.  D.,  for dollars 

and cents,  will  be  lost  unless  execution  be  issued  forthwith. 

Rev.  Stat.  323,  Sec.  54.  "  All  executions  issued  by  a  justice  of  the 
peace,  shall  be  directed  to  any  constable  of  the  proper  county,  and  made 
returnable  to  the  justice  issuing  the  same,  within  seventy  days  from  the 
date  ;  ,such  executions  shall  be  levied  only  on  personal  property,  and 
shalt'be  in  the  following  form  as  near  as  may  be,  viz  : 

STATE  OF  ILLINOIS,  "> 
COUNTY,      j 

The  People  of  the  State  of  Illinois,  to  any  Constable  of  said  County, 
GREETING  : — 

We  command  you,  that  of  the  goods  and  chatties  of  A.  B.,  in  your 

county,  you  make  the  sum  of dollars  and cents,  debt, 

and dollars  and cents,  cost,  which  C.  D.  lately  recovered 

before  me,  in  a  certain  plea  against  the  said  A.  B.,  and  hereof  make 
return  to  me,  within  seventy  days  from  ?his  date. 

.  Given  under  my  hand  and  seal  this day  of ,  18 — . 

JOHN  DOE,  J.  P. 

"  Sec.  55.  When  it  shall  appear,  by  the  return  of  any  execution 
issued  as  aforesaid,  that  the  defendant  has  not  personal  property  within 
the  county  sufficient  to  satisfy  the  debt,  and  it  is  desired  by  the  plaint- 
iff to  have  execution  issued  to  some  other  county,  in  which  it  is  alleged 
that  the  defendant  -has  personal  property,  the  justice  shall  issue  execu- 
tion, directed  to  any  constable  of  the  county  where  such  property  shall 
be  said  to  be,  to  which  execution  shall  be  attached  an  official  certificate 
of  the  clerk  of  the  county  commissioners'  court  of  the  county  in  which 
the  same  shall  be  issued,  setting  forth  under  the  seal  of  said  court,  that 
such  justice  so  issuing,  was  at  the  time  of  issuing  of  said  execution,  a 
justice  of  the  peace  in  and  for  said  county ;  and  no  constable  shall  be 
bound  to  execute  any  such  process,  unless  so  authenticated." 

(1)  Rev.  Stat.  322,  Sec.  53. 


150  EXECUTION.  [PART  1. 

Form  of  Execution  to  a  Foreign  County. 

STATE  OF  ILLINOIS,  ) 

Lake  COUNTY,     f  Si 
The  People  of  the  State  of  Illinois,  to  any  Constable  of  Cook  County, 

GREETING  : — 

Whereas,  an  execution  has  been  issued,  and  directed  to  any  constable 
of  the  county  of  Cook,  on  a  judgment  recovered  before  the  under- 
signed, a  justice  of  the  peace  of  said  county,  in  favor  of  A.  B.,  and 

against  C.  D.,  for dollars  and cents,  for  the  plaintiff's 

demand,  and dollars  and cents,   costs,  and  the  same 

has  been  returned  by  a  constable  of  said  county,  "  no  property  found," 
(or  as  the  case  may  be)  •  and,  whereas,  it  is  alleged  that  the  said  C.  D. 
has  personal  property  in  the  county  of  Cook, 

Therefore,  we  command  you,  that  of  the  goods  and  chatties  of  the 
said  C.  D.,  in  your  county,  you  make  the  sum  of,  (insert  the  amount 
not  collected,)  and  make  return  to  the  said  justice,  at  his  ..office,  in 
,  in  said  county,  within  seventy  days  from  the  date  hereof. 

Given  under  my  hand  and  seal,  this day  of ,  18 — . 

LEVI  MAKBLE,  J.  P.     [SEAL.] 

Kev.  Stat.  326,  Sec.  78.  "  The  personal  property  of  every  defend- 
ant in  a  judgment  before  a  justice  of  the  peace,  shall  be  bound  for  the 
payment  of  such  judgment  from  the  delivery  of  the  execution  issued 
thereon  to  the  constable,  and  the  real  property  of  such  defendant  shall 
be  bound  as  aforesaid,  from  the  date  of  the  filing  of  a  transcript  of  the 
judgment  in  the  clerk's  office,  as  provided  in  this  chapter. 

"  Sec.  79.  Every  constable  to  whom  an  execution  shall  be  delivered, 
shall  endorse  on  the  back  of  the  same  an  exact  memorandum  of  the  day 
and  hour  when  the  same  shall  have  come  to  his  hands,  and  shall  imme- 
diately proceed  to  levy  the  same ;  indorsing  also  on  the  back  of  the 
execution  the  date  of  such  levy,  and  making  an  exact  inventory  of  the 
property  on  which  the  same  shall  have  been  levied,  and  shall  appoint  a 
day  and  hour  for  the  sale  of  said  property,  giving  ten  days'  previous 
notice  of  such  sale,  by  advertisement  in  writing,  to  be  posted  up  at 
three  of  the  most  public  places  in  the  county ;  and  on  the  day  so 
appointed,  the  said  constable  shall  sell  the  property  so  levied  on,  or  so 
much  thereof  as  may  be  necessary  to  pay  the  debt,  interest,  and  costs, 
to  the  highest  bidder." 

When  the  docket  and  papers  of  any  justice  of  the  peace  shall  be 
transferred  to  any  other  justice  of  the  peace,  as  provided  for  by  the 


CHAP.  12.]  EXECUTION.  151 

statute,1  such  justice  receiving  the  same,  may  proceed  to  the  comple- 
tion of  all  unfinished  business,  the  issuing  of  execution  upon  judgments 
remaining  unsatisfied  upon  such  docket,  and  collect  the  same,  and 
have  the  same  power  in  respect  to  such  docket  and  papers,  as  if  the 
same  pertained  to  proceedings  originally  instituted  before  him.2 

Form  of  Execution'  In/  a  Justice  to  whom  the  Docket  and  papers  of 
another  Justice  have  been  delivered  over. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      j 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : — 

We  command  you,  that  of  the  goods  and  chattels  of  C.  D.,  in  your 

county,  you  make  the  sum  of dollars  and cents,  costs, 

which  A.  B.,  on  the  day  of •,  18 — ,  recovered  before 

L.  M.,  then  a  justice  of  the  peace  of  said  county,  in  a  certain  plea 
against  the  said  C.  D.,  as  appears  by  the  docket  of  said  justice,  here- 
tofore delivered  over  to  me,  together  with  the  papers  of  said  justice ; 
and  now  remaining  with  Henry  Ames,  then  the  nearest  justice  of  the 
peace  of  said  county,  upon  the  resignation  (or  death,  or  removal  from 
the  district  in  which  he  was  elected,}  of  said  L.  M.  And  do  you 
make  a  return  thereof  to  the  undersigned,  within  seventy  days  from 
this  date. 

Given  under  my  hand  and  seal,  this day  of ,  18 — . 

HENRY  AMES.  J.  P.  (SEAL.) 

The  rules  which  apply  to  the  levying,  &c.  of  executions,  and  relate 
more  particularly  to  the  duties  of  constables,  will  be  found  in  PART 
FOURTH. 


III.      OF    EXECUTIONS   AGAINST   THE    BODY. 

Rev.  Stat,  328,  Sec.  91.  "In  cases  of  judgment  for  debt,  when- 
ever the  plaintiff,  or  his  authorized  agent,  shall  make  oath  before  the 
justice  in  whose  office  such  judgment  may  be,  that  he  or  she  verily 
believes  the  defendant  or  defendants  to  be  able  to  pay  such  judgment, 
and  withholds  the  money,  or  secretes  his,  her,  or  their  property  from 
the  officer,  so  that  the  debt  cannot  be  levied,  it  shall  be  lawful  for  the 
plaintiff  to  demand,  and  for  the  justice  to  issue  execution  against  the 

(1)  See  Rev.  Stat.  331,  Sec.  112.  (2)  Rev.  Stat.  331,  Sec.  110. 


152  EXECUTION.  [PART  1, 

body  of  sucli  defendant  or  defendants."     And  it  is  also  enacted, 

Rev.  Stat.  282,  Sec.  1 :  "  Whenever  any  debtor  shall  refuse  to  sur- 
render his  or  her  estate,  lands,  tenements,  goods  or  chattels,  for  the  satis- 
faction of  any  execution  which  may  be  issued  against  the  property  of  any 
such  debtor,  it  shall  and  may  be  lawful  for  the  plaintiff  in  such  execu- 
tion, or  his  or  her  attorney,  or  agent,  to  make  .affidavit  of  such  fact 
before  any  justice  of  the  peace  of  the  county ;  and  upon  filing  such 
affidavit  with  the  clerk  of  the  court  from  which  the  execution  issued,  or 
with  the  justice  of  the  peace  who  issued  such  execution,  it  shall  be 
lawful  for  such  clerk,  oi\  justice  of  the  peace,  as  the  case  may  be,  to 
issue  a  ca.  sa.  against  the  body  of  such  defendant  in  execution." 

As  far  as  relates  to  justices  of  the  peace,  the  only  substantial  differ- 
ence between  the  two  foregoing  sections  of  the  statute  is,  that  one 
requires  the  filing  of  an  affidavit,  and  the  other  merely  the  oath  of  the 
party,  to  obtain  an  execution  against  the  body.  The  following  may  be 
the  form  of  such  oath  : 

Form  of  Oath  to  obtain  Execution  against  the  Body. 

You  do  swear  that  you  verily  believe  C.  D.  to  be  able  to  pay  a  cer- 
tain judgment  rendered  in  your  favor,  against  the  said  C.  D.,  on  the 

day  of ,  18 — ,  for dollars  and cents,  and 

withholds  the  money,  (or  secretes  his  property  from  the  officer,  so  that 
the  same  cannot  be  levied,  as  the  case  may  oe.) 

Form  of  Execution  against  the  Body,  or  "  Ca.  /Sa." 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  ss' 

The  People  of  the  State  of  Illinois,  to  any  Constable  of  said  County, 

GREETING  :  * 

Whereas,  A.  B.  lately  recovered  before  the  undersigned,  a  justice  of 

the  peace  of  said  county,  the  sum  of dollars  and cents, 

debt,  and dollars  and cents,  costs,  against  C.  D.,  as  appears 

by  the  docket  of  said  justice,  (or  if  the  docket  containing  the  judgment 
has  been  delivered  over  to  another  justice,  then  say:  of  L.  M.,  a 
justice  of  the  peace  of  said  county,  heretofore  delivered  over,  together 
with  his  papers,  to  and  now  remaining  with  AMOS  WRIGHT,  then  the 
nearest  justice  of  the  peace  of  the  said  county,  upon  the  resignation, 
— or  if  for  any  other  cause,  insert  it, — of  said  L.  M.)  And,  whereas, 


CHAP.  13.]  EXECUTION.  153 

an  execution,  issued  upon  said  judgment  against  the  goods  and  chattels 
of  the  said  C.  D.,  has  lately  been  returned  by  E.  F.,  a  constable 
of  said  county,  "  no  property  found ;"  and,  whereas,  the  said  A.  B.  has 
this  day  made  oath  before  the  undersigned  that  he  verily  believes  the 
said  C.  D.  is  able  to  pay  the  said  judgment,  and  withholds  the  money, 
(or  that  lie  fraudulently  secreted  his  property  from  said  constable,  so 
that  the  judgment  aforesaid  could  not  be  levied,) 

Now,  therefore,  you  are  hereby  commanded  to  take  the  body  of  the 
said  C.  D.,  if  he  shall  be  found  in  your  county,  and  convey  him  to  the 
common  jail  of  said  county,  there  to  remain  until  he  shall  pay  and 
satisfy  said  A.  33.,  the  judgment  aforesaid;  and  do  you  make  return 
hereof  as  the  law  directs. 

Given  under  my  hand  and  seal,  this  day  of ,  18 — . 

AMOS  WRIGHT,  /.  P.  [SEAL.] 

Judgment,  $50.00 1 

Costs,  $2.50  >• 

Collect  interest  from  ,  18 — .  I 


Form  of  Affidavit  far  "  Ca.  Sa." 

STATE  OF  ILLINOIS,") 
COUNTY,      f  ss 

A.  B.  being  duly  sworn,  doth  depose  and  say  that,  on  the day 

of ,  18 — ,  a  judgment  was  rendered,  before  L.  M.,  a  justice  of 

the  peace  of  the  county  aforesaid,  for  the  sum  of dollars  and 

cents,  in  favor  of  the  said  A.  B.  and  against  C.  D.,  and  for  the  sum  of 

dollars  and cents  for  costs  of  suit ;  that  an  execution  was 

issued  upon  said  judgment  against  the  goods  and  chatties  of  the  said 
C.  D.,  and  delivered  to  one  J.  K,,  a  constable  of  said  county,  to  levy, 
and  that  the  said  C.  D.  refused  to  surrender  his  goods  and  chattels 
upon  said  execution,  for  the  satisfaction  thereof. 

Subscribed  and  sworn  to    1  A.  B. 

before  me  this day 

of ,  18—. 

E.  F.,  J.  P. 

The  form  of  ca.  sa.  before  given,  may  be  used  in  cases  of  affidavit 
filed,  by  varying  the  same  according  to  the  facts. 

A  justice  of  the  peace  cannot  issue  an  execution  against  the  body  of 


154  GARNISHMENT.  [PART    1, 

a  defendant  before  an  execution  against  the  property  lias  been  returned 
unsatisfied,  except  in  actions  of  trover  and  trespass.1 


II.     OF    GARNISHMENT. 

Rev.  Stat.  307,  Sec.  38.  "  Whenever  a  judgment  shall  be  rendered 
by  any  court  of  record,  or  any  justice  of  the  peace  in  this  State,  and  an 
execution  against  the  defendant  or  defendants  in  said  judgment  shall  be 
returned  by  the  proper  officer,  "  no  property  found,"  on  the  affidavit  of 
the  plaintiff,  or  other  credible  person,  being  made  before  the  clerk  of 
said  court,  or  justice  of  the  peace,  that  said  defendant  or  defendants 
have  no  property  within  the  knowledge  of  such  affiant,  in  his  or  their 
possession,  liable  to  execution ;  and  that  such  affiant  hath  just  reason 
to  believe  that  another  person,  or  persons,  is  or  are  indebted  to  such 
defendant  or  defendants,  or  hath,  or  have  any  effects  or  estate  of  such 
defendent  or  defendants,  in  his  or  their  hands  ;  it  shall  be  lawful  for  said 
court,  or  justice  of  the  peace,  to  cause  the  person  or  persons  supposed 
to  be  indebted  to,  or  supposed  to  have  any  of  the  effects  or  estate  of  the 
said  defendant  or  defendants,  to  be  summoned  forthwith  to  appeal- 
before  said  court,  or  justice,  as  a  garnishee  or  garnishees ;  and  said 
court  or  justice  of  the  peace,  shall  examine  and  proceed  against  such 
garnishee  or  garnishees,  in  the  same  manner  as  is  required  by  law  against 
garnishees  in  original  attachments." 


Form  of  Affidavit  for  Garnishee  Process  on  Judgment. 
LINOIS.  ") 

NTY,  |ss- 


STATE  OF  ILLINOIS, 
COUNTY 


B- 


vs.  \-  Before  L.  M.,  Justice  of  the  Peace. 

C  -  D 


A.  B.,  the  plaintiff  in  the  above  entitled  suit,  being  sworn,  on  oath 
says  that  he  lately  recovered  a  judgment  in  said  suit  before  L.  M.,  a 
justice  of  the  peace  of  said  county,  against  said  C.  D.,  for  the  sum  of 
-  dollars,  debt,  and  -  dollars,  costs  of  suit  ;  that  an  execution 
has  been  lately  issued  on  said  judgment,  and  returned  by  a  constable 
of  said  county,  "no  property  found;"  that  the  said  C.  D.  has  no 
property  within  deponent's  knowledge  in  his  possession  liable  to  execu- 

(1)  13  III.  22. 


ClUP.    12.]  GARNISHMENT. 

«iou;  that  deponent  has  just  reason  to  believe,  and  does  believ 


Subscribed  and  sworn  to  before  me  ] 
this  -  day  of  -  ,18_    ' 

L.  M.,  t 

Justice  of  the  Peace.  I 

Form  of  Garnishee  Summons. 

STATE  OF  ILLINOIS,  > 
-  COUNTY,       j  SS- 

The  People  of  the  State  of  Illinois  to  any  Constalle  of  said  county 
GREETING  : 

usr^f  T,',  A'  B'  haf  tlli8  ^  mad°  °alh  W°re  the  "Signed,  a 
just.ee  of  tte  peace  of  said  eounty,  that  he  lately  recovered  a  juLent 
Wore  1  M.,  a  justice  of  the  peace  of  said  eounty,  against  tlS  C 
D.,  for  the  sum  of  -    -  dollars,  debt,  and  for  _  dollars  , 
that  an  caution  has  been  late.y  issued  on  said  judgn^t'  a  ^ed 
by  a  constable  of  sari  county,  ••  »„  propert    fomd  *    that  ^   ™ 

' 


Now,  therefore,  we  command  you  that  you  summon  the  said  P  n 
to  appear  forthwith,  as  gamishee,  before  L  undersi^d       Ms  office 
C°Wt    '°  then  afd  there  objected 


w,  .    .,.     SEAL 

When  the  person  summoned  as  garnishee  appears  the  iustice  will 
roqu.re  that  he  be  sworn  touching  his  indebtedness  to  Ihe  def^tlr 
judgment  debtor  in  question,  or  as  to  his  having  anv  effects 

*  to  said  defendant-  The 


^e  administeredto  Ganlishee 

You  do  swear  that  you  will  true  answers  make  to  such  questions  as 


156  GARNISHMENT.  [PART  2, 

may  be  put  to  you  touching  your  indebtedness  to  C.  D.,  or  as  to  your 
having  in  your  hands  any  effects  of  the  said  C.  D. 

Kev.  Stat.  307,  Sec.  39.  "No  proceedings  against  a  garnishee  or 
garnishees,  shall  be  quashed  or  set  aside,  or  said  garnishee  or  gamishees 
discharged,  on  account  of  any  insufficiency  of  the  original  affidavit  or 
summons,  if  the  plaintiff  or  plaintiffs,  or  other  credible  person  for  him, 
shall  cause  a  legal  and  sufficient  affidavit  to  be  filed,  or  the  summons  to 
be  amended  in  such  tune  and  manner  as  the  courts  or  justices  of  the 
peace  shall,  respectively,  in  their  discretion  direct ;  and,  in  that  event, 
the  cause  shall  proceed  as  if  such  proceedings  had  originally  been  suf- 
ficient." 

A  garnishee  is  liable  for  all  that  may  be  in  his  hands,  or  owing  by 
him  to  the  principal  debtor,  upon  a  fair  settlement  between  them  from 
the  service  of  the  garnishment.1 

The  answer  of  a  garnishee,  until  it  is  contradicted  or  disproved,  must 
be  considered  as  true. 

It  must  clearly  appear  that  he  is  chargeable,  or  he  will  be  discharged.2 

Surplus  money  made  on  execution,  in  the  hands  of  an  officer,  belong- 
ing to  the  defendant,  may  be  garnisheed  in  the  hands  of  an  officer.3 

Where  property  had  been  placed  in  the  hands  of  a  garnishee  to 
indemnify  him  for  becoming  the  security  of  such  defendant,  it  was  held 
to  be  a  pledge  of  the  property,  and  gave  the  garnishee  a  right  to  retain 
it  until  his  liability  as  security  was  extinguished.4 

A  defendant  being  notified  that  a  judgment  against  him  belongs  to  a 
person  other  than  the  plaintiff  on  the  record,  he  is  as  much  bound  by 
the  notice  as  if  the  record  stated  the  judgment  to  be  for  the  use  of  such 
person.5 

A  garnishee  may  inquire  into  the  legality  and  regularity  of  all  the 
previous  proceedings  against  a  defendant  in  attachment,  in  order  to 
determine  whether  they  were  authorised  or  not.6 

(1)  1  Gil.  584.  (2)  Ibid. ;  12  111.  358.  (3)  12  111.  358.  (4)  1  Gil.  86. 

(5)  12  111.  170.  (6)  12  HI.  358. 


CHAP.  1.]  POWERS  OF  JUSTICES.  157 


PART  SECOND. 

OF  PROCEEDINGS  BEFORE  JUSTICES  OF  THE  PEACE  IN 
CRIMINAL  CASES. 


CHAPTER  I. 

OF  THE  POWERS  OF  JUSTICES  OF  THE  PEACE,  RELATIVE 
TO  THE  ENFORCEMENT  OF  THE  LAWS,  FOR  THE  PRE- 
VENTION AND  PUNISHMENT  OF  OFFENSES,  AND  PRES- 
ERVATION AND  OBSERVANCE  OF  THE  PEACE. 

Rev.  Stat.  190,  Sec.  201.  "  The  judges  of  the  supreme  and  circuit  courts 
in  their  respective  circuits,  and  justices  of  the  peace  in  their  respective 
counties,  shall  jointly  and  severally  be  conservators  of  the  peace  within 
their  respective  jurisdictions,  as  herein  designated,  and  shall  have  full 
power  to  enforce,  or  cause  to  be  enforced,  all  laws  that  now  exist,  or 
that  shall  hereafter  be  made,  for  the  prevention  and  punishment  of 
offenses,  or  for  the  preservation  and  observance  of  the  peace.  They 
shall  have  power  to  cause  to  be  brought  before  them,  or  any  of  them, 
all  persons  who  shall  break  the  peace,  and  commit  them  to  jail,  or 
admit  them  to  bail,  as  the  case  may  require ;  and  to  cause  to  come 
before  them,  or  any  of  them,  all  persons  who  shall  threaten  to  break 
the  peace,  or  shall  use  threats  against  any  person  within  this  State, 
concerning  his  or  her  body,  or  threaten  to  injure  his  or  her  property, 
or  the  property  of  any  person  whatever ;  and,  also,  all  such  persons 
as  are  not  of  good  fame ;  and  the  said  judge  or  justice  of  the  peace, 
being  satisfied,  by  the  oath  of  one  or  more  witnesses,  of  his  or  her  bad 
character,  or  that  he  or  she  had  used  threats  as  aforesaid,  shall  cause 
.  such  person  or  persons  to  give  good  security  for  the  peace,  or  for  then- 
good  behavior  towards  all  the  people  of  this  State,  and  particularly 
towards  the  individual  threatened.  If  any  person  against  whom  such 


158  POWERS    OF   JUSTICES.  [PART  2, 

proceedings  are  had,  shall  fail  to  give  a  recognizance,  with  sufficient 
security,  it  shall  be  the  duty  of  the  judge  or  justice  of  the  peace  before 
whom  he  or  she  shall  be  brought,  to  commit  such  person  or  persons  to 
the  jail  of  the  proper  county,  until  such  security  be  given,  or  until  the 
next  term  of  the  circuit  court.  Such  judge  or  justice  of  the  peace  shall 
also  take  recognizance  for  the  appearance  of  all  witnesses  at  such  courts. 
All  recognizance  to  be  taken  in  pursuance  of  this  section,  shall  be 
returnable  to  the  next  circuit  court,  to  be  holden  in  the  proper  county, 
where  all  such  recognizance  shall  be  renewed  or  dismissed,  as  the  said 
circuit  court  shall,  upon  examination  of  the  witnesses,  deem  to  be  just 
and  right.  And  where  the  person  or  persons  committed  are  in  jail  at 
the  sitting  of  such  circuit  conrt,  the  court  shall  examine  the  witnesses, 
and  either  continue  the  imprisonment,  bail  the  prisoner,  or  discharge 
him  or  her,  as  to  the  said  court  shall  appear  to  be  right,  having  due 
regard  to  the  safety  of  the  citizens  of  this  State." 


CHAP.  2.]       PERSONS  CAPABLE  OF  COMMITTING  CRIMES.  159 


CHAPTER   II. 

OF  PERSONS  CAPABLE  OF  COMMITTING  CRIMES,  OF  ACCES- 
SORIES, AND  WHO  MAY  BE  WITNESSES  IN  CRIMINAL 
CASES. 

I.  OF  PERSONS  CAPABLE  OF  COMMITTING  CRIMES. 
II.  OP  ACCESSORIES  TO  CRIMES. 
III.  WHO  MAY  BE  WITNESSES  IN  CRIMINAL  CASES. 

I.  OF  PERSONS  CAPABLE  OF  COMMITTING  CRIMES. 

Criminal  Code,  Sec.  1.  "A  crime  or  misdemeanor  consists  in  a 
violation  of  a  public  law,  in  the  commission  of  which  there  shall  be  an 
union  or  joint  operation  of  act  and  intention  or  criminal  negligence. 

"  Sec.  2.  Intention  is  manifested  by  the  circumstances  connected 
with  the  perpetration  of  the  offense,  and  the  sound  mind  and  discretion 
of  the  person  accused. 

"Sec.  3.  A  person  shall  be  considered  of  sound  mind,  who  is 
neither  an  idiot  nor  lunatic,  nor  affected  with  insanity,  and  who  hath 
arrived  at  the  age  of  fourteen  years,  or  before  that  age,  if  such  person 
know  the  distinction  between  good  and  evil. 

"  Sec.  4.  An  infant  under  the  age  of  ten  years,  shall  not  be  found 
guilty  of  any  crime  or  misdemeanor. 

."  Sec.  5.  A  lunatic  or  insane  person,  without  lucid  intervals,  shall 
not  be  found  guilty  of  any  crime  or  misdemeanor  with  which  he  may 
be  charged ;  provided,  the  act  so  charged  as  criminal  shall  have  been 
committed  in  the  condition  of  insanity. 

"  Sec.  6.  An  idiot  shall  not  be  found  guilty  or  punished  for  any 
crime  or  misdemeanor  with  which  he  or  she  may  be  charged. 

"  Sec.  7.  Any  person  counseling,  advising  or  encouraging  an  infant 
under  the  age  of  ten  years,  lunatic  or  idiot,  to  commit  any  offense, 


160  PERSON'S    CAPABLE   OF   COMMITTING    CRIMES.  [PART  2, 

shall  be  prosecuted  for  such  offense,  when  committed,  as  principal ; 
and,  if  found  guilty,  shall  suffer  the  same  punishment  that  would  have 
been  inflicted  on  such  person  counseling,  advising  or  encouraging  as 
aforesaid,  had  he  or  she  committed  the  offense  directly,  without  the 
intervention  of  such  infant,  lunatic  or  idiot. 

"  Sec.  8.  A  married  woman,  acting  under  the  threats,  command  or 
coercion  of  her  husband,  shall  not  be  found  guilty  of  any  crime  or  mis- 
demeanor not  punishable  with  death  ;  provided,  it  appear,  from  all  the 
facts  and  circumstances  of  the  case,  that  violent  threats,  command  or 
coercion  were  used ;  and  in  such  case,  the  husband  shall  be  prosecuted 
as  principal,  and  receive  the  punishment  which  would  otherwise  have 
been  inflicted  on  the  wife,  if  she  had  been  found  guilty. 

"  Sec.  9.  Drunkenness  shall  not  be  an  excuse  for  any  crime  or 
misdemeanor,  unless  such  drunkenness  be  occasioned  by  the  fraud,  con- 
trivance or  force  of  some  other  person  or  persons,  for  the  purpose  of 
causing  the  perpetration  of  an  offense ;  in  which  case,  the  person  or 
persons  so  causing  said  drunkenness,  for  such  malignant  purpose,  shall 
be  considered  principal  or  principals,  and  suffer  the  same  punishment 
as  would  have  been  inflicted  on  the  person  or  persons  committing  the 
offense,  if  he,  she  or  they  had  been  possessed  of  sound  reason  and  dis- 
cretion. 

"  Sec.  10.  Acts  committed  by  misfortune  or  accident,  shall  not  be 
deemed  criminal,  where  it  satisfactorily  appears  that  there  was  no  evil 
design  or  intention,  or  culpable  negligence. 

"  Sec.  11.  A  person  committing  a  crime  or  misdemeanor  not  pun- 
ishable with  death,  under  threats  or  menaces  which  sufficiently  show 
that  his  or  her  life  or  member  was  in  danger,  or  that  he  or  she  had 
reasonable  cause  to  believe,  and  did  believe,  that  his  or  her  life  or  mem- 
ber was  in  danger,  shall  not  be  found  guilty ;  and  such  threats  or 
menaces  being  proved  and  established,  the  person  or  persons  compelling 
by  such  threats  and  menaces  the  commission  of  the  offense,  shall  be 
considered  as  principal  or  principals,  and  suffer  the  same  punishment 
as  if  he  or  she  had  perpetrated  the  offense. 

"  Sec.  12.  A  person  that  becomes  lunatic  or  insane,  after  the  com- 
mission of  a  crime  or  misdemeanor,  ought  not  to  be  tried  for  the  offense 
during  the  continuance  of  the  lunacy  or  insanity.  If,  after  verdict  of 
guilty,  and  before  judgment  pronounced,  such  person  become  lunatic 
or  insane,  then  no  judgment  shall  be  given  while  such  lunacy  or  insanity 
shall  continue.  And  if,  after  judgment  and  before  execution  of  the 
sentence,  such  person  become  lunatic  or  insane,  then,  in  case  the  pun- 


CHAP.  2.]  ACCESSORIES. — WITNESSES.  161 

ishment  be  capital,  the  execution  thereof  shall  be  stayed  until  the 
recovery  of  said  person  from  the  insanity  or  lunacy.  In  all  of  these 
cases  it  shall  be  the  duty  of  the  court  to  empannel  a  jury  to  try  the 
question  whether  the  accused  be  at  the  time  of  empanneling,  insane  or 
lunatic. 


II.    OP   ACCESSORIES    TO    CRIMES. 

"  Sec.  13.  An  accessory,  is  he  or  she  who  stands  by  and  aids,  abets 
or  assists  ;  or  who,  not  being  present  aiding,  abetting  or  assisting,  hath 
advised  and  encouraged  the  perpetration  of  the  crime.  He  or  she  who 
thus  aids,  abets  Or  assists,  advises  or  encourages,  shall  be  deemed  and 
considered  as  principal,  and  punished  accordingly. 

"  Sec.  14.  An  accessory,  after  the  fact,  is  a  person  who,  after  full 
knowledge  that  a  crime  has  been  committed,  conceals  it  from  the  magis- 
trate, or  harbors  and  protects  the  person  charged  with  or  found  guilty 
of  the  crime.  Any  person  being  found  guilty  of  being  an  accessory 
after  the  fact,  shall  be  imprisoned  for  any  term  not  exceeding  two  years, 
and  fined  in  a  sum  not  exceeding  five  hundred  dollars,  in  the  discretion 
of  the  court,  to  be  regulated  by  the  circumstances  of  the  case  and  the 
enormity  of  the  crime. 


III.    WHO    MAY    BE    WITNESSES    IN    CRIMINAL    CASES. 

"  Sec.  15.  The  party  or  parties  injured,  shall,  in  all  cases,  be  com- 
petent witnesses,  unless  he,  she  or  they  shall  be  rendered  incompetent 
by  reason  of  his,  her  or  their  infamy,  or  other  legal  incompetency  other 
than  that  of  interest;  the  credibility  of  all  such  witnesses  shall  be  left 
to  the  jury  as  in  other  cases. 

"  Sec.  16.  No  black  or  mulatto  person,  or  Indian,  shall  be  permitted 
to  give  evidence  in  favor  of  or  against  any  white  person  whatsoever. 
Every  person  who  shall  have  one-fourth  part  or  more  of  negro  blood, 
shall  be  deemed  a  mulatto ;  and  every  person  who  shall  have  one-half 
Indian  blood,  shall  be  deemed  an  Indian. 

"  Sec.  16.     Approvers  shall  not  be  allowed  to  give  testimony. 

"  Sec.  18.  The  solemn  affirmation  of  witnesses  shall  be  deemed 
sufficient.  A  false  and  corrupt  affirmation  shall  subject  the  witness  to 
all  the  penalties  and  punishment  provided  for  those  who  commit  willful 
and  corrupt  perjury." 

10 


162  DUTY   OF   JUSTICES   IN    CRIMINAL  OFFENSES.  [PART  2, 


CHAPTER    III. 

OF  PROCEEDINGS  WHERE  A  CRIMINAL  OFFENSE  HAS  BEEN 
COMMITTED. 

I.  DUTY  OF  THE  JUSTICE,  ON  COMPLAINT  THAT  A  CRIMINAL  OF- 
FENSE HAS  BEEN  COMMITTED. 

II.  OF  THE  COMPLAINT. 

III.  OF  THE  WARRANT. 

IV.  OF  THE  ARREST. 

V.  OF  THE  EXAMINATION. 
VI.  OF  PROCEEDINGS  SUBSEQUENT  TO  THE  EXAMINATION. 

1.  Of  the  Discharge. 

2.  Of  Bail  and  Recognizance. 

3.  Of  Commitment. 

4.  Of  Recognizance  of  Witnesses. 

5.  Of  Bail  after  Commitment . 

I.  DUTY  OF  THE  JUSTICE,  ON  COMPLAINT  THAT  A  CRIMINAL  OFFENSE 
HAS  BEEN  COMMITTED. 

Crim.  Code,  Sec.  202.  "Where  any  felonious  offense  shall  be  com- 
mitted, public  notice  thereof  shall  be  immediately  given  in  all  public 
places  near  where  the  same  was  committed,  and  fresh  pursuit  shall  be 
forthwith  made  after  every  person  guilty  thereof,  by  sheriffs,  coroners, 
constables,  and  all  other  persons  who  shall  be  by  any  one  of  them  com- 
manded or  summoned  for  that  purpose  :  every  such  officer,  who  shall 
not  do  his  duty  in  the  premises,  shall  be  punished  by  fine,  in  a  sum  not 
exceeding  one  hundred  dollars,  or  imprisonment  not  exceeding  three 
months. 

"  Sec.  203.  It  shall  be  lawful  for  any  of  the  aforenamed  judges  or 
justices  of  the  the  peace,  upon  oath  or  affirmation  being  made  before  him, 
that  any  person  or  persons  have  committed  any  criminal  offense,  in  this 


ClIAP.   3.]          DUTY    OF    JUSTICES    IN  CRIMINAL    OFFENSES.  163 

State,  or  that  a  criminal  offense  has  been  committed,  and  that  the  witness 
or  witnesses,  have  just  and  reasonable  grounds  to  suspect  that  such  per- 
son or  persons  have  committed,  the  same,  to  issue  his  warrant  under  his 
hand,  commanding  the  officer,  or  person  charged  with  the  execution 
thereof,  to  arrest  the  person  or  persons  so  charged,  and  bring  him,  her, 
or  them  before  the  officer  issuing  said  warrant,  or  in  case  of  his  absence, 
before  any  other  judge  or  justice  of  the  peace ;  the  said  judge  or  justice 
of  the  peace,  before  whom  any  person  or  persons  shall  be  brought,  in 
pursuance  of  such  warrant,  or  shall  be  brought  without  warrant,  and 
charged  with  any  criminal  offense,  before  he  shall  commit  such  prisoner 
to  jail,  admit  to  bail  or  discharge  him  or  her  from  custody,  shall  inquire 
into  the  truth  or  probability  of  the  charge  exhibited  against  such  prison- 
er or  prisoners,  by  the  oath  of  all  the  witnesses  attending ;  and  shall, 
upon  consideration  of  the  facts  and  circumstances  then  proved,  either 
commit  such  person  or  persons  so  charged  to  jail,  admit  him,  her  or 
them  to  bail,  or  discharge  him,  her  or  them  from  custody.  No  justice 
of  the  peace  shall  admit  to  bail  any  person  or  persons  charged  with  treason, 
murder,  or  any  offense  punishable  with  death;  and  provided,  that  in  all 
cases  where  the  charge  is  for  sodomy,  rape,  arson,  burglary,  robbery, 
forgery  or  counterfeiting,  it  shall  be  the  duty  of  any  justice  of  the  peace, 
whenever  any  person  or  persons  shall  be  brought  before  him  for  the  same 
or  either  of  them,  to  associate  with  himself  some  neighboring  justice  of 
tho  peace,  previous  to  the  examination  of  the  witnesses ;  and  they  two 
shall  have  power  to  bail  such  prisoner  or  prisoners,  or  commit  him, 
her  or  them  to  jail,  in  case  no  good  and  sufficient  bail  is  offered,  or 
discharge  the  prisoner  or  prisoners,  according  to  the  proof  that  is 
adduced  and  the  law  arising  thereon.  All  recognizances  taken  in 
pursuance  of  this  section,  shall  require  the  accused  to  appear  at  and 
on  the  first  day  of  the  next  circuit  court ;  or,  if  the  court  be  then  sitting, 
on  some  day  of  the  term  to  be  therein  designated. 

"Sec.  204.  It  shall  be  the  duty  of  the  judge  or  justice  of  the 
peace,  who  shall  commit  any  offender  to  jail,  as  aforesaid,  or  admit  him 
to  bail,  to  bind  by  recognizance  the  prosecutor,  and  all  such  as  do  declare 
anything  material  to  prove  the  offense  charged,  to  appear  before  the 
next  circuit  court,  on  the  first  day  thereof;  or,  if  the  said  court  shall  be 
then  sitting,  on  some  day  to  be  therein  designated,  (and  in  all  cases,  at 
the  same  time  and  place  as  the  person  or  persons  accused  by  said 
witnesses,  shall  be  bound  to  appear,)  to  give  evidence  touching  the 
offense  so  charged,  and  not  depart  the  court  without  leave.  If  any 
person,  upon  being  required  to  enter  into  recognizance,  as  aforesaid, 


164  COMPLAINT.  .  [PART  2, 

shall  refuse,  it  shall  be  lawful  for  such  judge  or  justice  of  the  peace  to 
commit  him  or  her  to  jail,  there  to  remain  until  he  or  she  shall  enter 
into  such  recognizance,  or  be  otherwise  discharged  by  due  course  of 
law. 

"  Sec.  205.  All  recognizances  that  have  any  relation  to  criminal  mat- 
ters, shall  be  taken  to  the  people  of  this  State,  shall  be  signed  by  the 
person  or  persons  entering  into  the  same,  be  certified  by  the  judge,  jus- 
tice of  the  peace,  or  other  officer  taking  the  same,  and  delivered  to  the 
clerk  of  the  circuit  court,  on  or  before  the  day  mentioned  therein  for 
the  appearance  of  the  witness  or  accused,  therein  bound.  Recognizan- 
ces taken  in  courts  of  record  need  not  be  signed  or  certified,  as  afore- 
said. Recognizances  for  assaults,  batteries  and  affrays,  shall  be  for  the 
appearance  of  the  accused  before  the  justice  of  the  peace  taking  the 
same,  or  before  some  other  justice  of  the  county,  on  the  day  appointed 
by  the  justice,  for  the  trial  of  the  offender. 

"  Sec.  206.  Where  any  person  shall  be  committed  to  jail,  on  a  crim- 
inal charge,  for  want  of  good  and  sufficient  bail,  except  for  treason, 
murder,  or  other  offense  punishable  with  death,  or  for  not  entering  into 
a  recognizance  to  appear  and  testify,  a  judge  or  any  justice  of  the  peace, 
may  take  such  bail  or  recognizance,  in  vacation,  and  may  discharge  such 
prisoner  from  his  or  her  imprisonment.  It  shall  be  the  duty  of  the 
judge  or  justice  committing  such  person  to  jail,  to  endorse  on  the  war- 
rant for  commitment,  in  bailable  cases,  in  what  sum  bail  ought  to  be 
taken." 


II.    OF    THE    COMPLAINT. 

Where  a  statute  gives  a  justice  jurisdiction  over  an  offense,  it  impli- 
edly  gives  him  power  to  apprehend  any  person  charged  with  such 
offense.1 

The  initiatory  steps  to  be  taken  in  order  to  procure  the  arrest  and 
examination  of  persons  charged  with  having  committed  offenses,  is  to 
make  a  complaint  to  any  officer  authorized  by  law  to  receive  it,  showing 
that  a  criminal  offense  has  been  committed. 

Criminal  prosecutions  are  carried  on  in  the  name  of  the  people,  and 
have  for  their  principal  object  the  security  and  safety  of  the  people  in 
general,  and  not  merely  private  redress.  But  as  offenses  for  the  most 

(1)  1  Chit.  Grim.  L.  34. 


CHAP.  3.]  COMPLAINT.  165 

part  more  particularly  affect  a  particular  individual,  it  is  not  usual  for 
any  other  person  to  interfere.  In  general,  however,  every  man  is  of 
common  right  entitled  to  prefer  an  accusation  against  a  party  whom 
he  suspects  to  be  guilty.1 

When  a  person  competent  to  enter  a  complaint  knows  that  another 
has  committed  an  offense,  he  should  see  that  measures  are  taken  to 
bring  the  offender  to  justice.  In  point  of  morals  this  duty  is  quite 
plain,  and  it  is  especially  so  with  regard  to  those  more  aggravated 
crimes  which  strike  at  the  foundation  of  public  tranquility,  or  endanger 
the  lives  and  property  of  individuals. 

No  one  can  be  said  to  have  fully  discharged  his  obligations  to 
society,  who,  under  such  circumstances,  should  remain  silent  and  in- 
active, and  allow  the  culprit  to  escape.  In  England  this  duty  is 
expressly  enforced  by  statute,  and  the  neglect  of  it,  is  in  many  cases 
rendered  criminal,  and  visited  with  exemplary  punishment.  It  is 
stated,  moreover,  to  be  an  offense  at  common  law,  for  one  who  knows 
that  felony  or  treason  has  been  committed  willfully,  to  omit  informing 
against  the  offender. 

If  a  justice  of  the  peace  without  complaint  or  information  should 
issue  a  warrant  and  cause  a  person  to  be  arrested,  trespass  would  lie 
against  him ;  for  though  he  is  accused  when  he  issues  a  warrant  on  a 
false  accusation,  yet  it  is  otherwise  where  he  issues  his  warrant  without 
accusation.2 

The  statute  does  not  require,  as  will  be  seen  by  reference  to  section 
'203  in  the  preceding  division  of  this  chapter,  that  the  complaint  or 
information,  in  case  where  a  felonious  offense  has  been  committed, 
should  be  in  writing. 

It  is  laid  down,  however,  by  several  writers,  that  it  is  the  duty  of  the 
magistrate,  independent  of  any  statutory  provision,  to  take  all  charges, 
of  whatsoever  kind  or  complexion  they  may  be,  in  writing.3  This 
practice  is  recommended  by  a  variety  of  considerations ;  among  which 
are  the  following :  It  will  ensure  greater  system  and  accuracy  in  the 
subsequent  proceedings — enabling  the  justice,  in  case  the  complainant 
or  any  of  the  witnesses  are  prosecuted  for  their  doings  in  the  matter, 
to  shew  distinctly  what  they  testify  to — and  further,  if  the  justice  him- 
self is  prosecuted,  it  will  facilitate  his  defense,  by  enabling  him  to 
exhibit,  at  once,  an  information  on  oath  authorizing  the  warrant  and 
giving  him  jurisdiction.4 

(1)  1  Chit.  Crim.  L.  1.     (2)  Breese,  165.      (3)  See  Barb.  Crim.  L.  519,  and  authorities  cited. 
(4)  See  2  Stark.  Ev.  429,  note  a;  Barb.  Crim.  L.  519. 


166  •          WARRANT.  [PART  2, 

When  the  complaint  is  reduced  to  writing,  it  may  be  in  the  follow- 
ing form  : 


Form,  of  complaint,  when  any  criminal  offense  has  been  committed. 
ois, ) 

r,    I88' 


STATE  OF  ILLINOIS, 
COUNTY, 


The  complaint  and  information  of  A.  B.  of  said  county  made  before 
E.  F.  Esquire,  one  of  the  justices  of  the  peace  in  and  for  said  county, 

on  the day  of ,  18 — ,  who  being  duly  sworn,  on  his  oath 

says  that  (Jiere  set  forth  the  offense}.1 
Subscribed  and  sworn  to  before  me,  A.  B. 

this day  of A.D.  18— . 

E.  F. 
Justice  of  the  Peace. 

Form  of  oath  of  complaint,  where  the  complaint  is  not  reduced 
to  writing. 

You  do  swear,  that  you  will  true  answers  make  to  such  questions  as 
may  be  put  to  you  touching  the  present  complaint  against  C.  D.  So 
help  you  God. 


III.    OF    THE    WARRANT. 

If  the  justice  determines  that  the  case  requires  further  proceedings, 
his  next  duty  is  to  issue  his  warrant  for  the  apprehension  of  the 
offender.  The  warrant  to  arrest  persons  with  a  view  of  obtaining 
sureties  of  the  peace,  will  be  noticed  hereafter.  It  is  proposed  here  to 
notice,  in  a  general  way,  the  more  ordinary  warrant  to  arrest  persons 
charged  with  having  committed  crimes ;  though  in  most  respects  our 
observations  will  apply  to  both  species  of  warrants. 

In  respect  to  the  form  and  requisites  of  this  species  of  warrant,  the 
following  particulars  are  deserving  of  attention  : 

1st.  That  it  should  show  the  county  where  it  ivas  made,  either  in 
the  body  of  the  warrant,  or  in  the  margin? 

(1)  The  manner  of  stating  the  various  offenses  will  be  the  same  as  that  recited  in  tin- 
warrant;  reference  can  therefore  be  had  to  the  forms  of  statements  in  Chapter  IV.  post. 

(2)  2  Hawk.  P.  C.  Chap.  13,  §  23. 


CHAP.  3.]  WARRANT.  167 

This  is  usually  done  by  a  statement  in  the  margin  at  the  com- 
mencement, thus : 

STATE  OF  ILLINOIS,  ) 

>•   SQ 

Lake  COUNTY,     j  ^ 

2d.  It  ought  to  set  forth  the  year  and  day  wherein  it  was  issued, 
that  in  an  action  brought  upon  an  arrest  made  by  virtue  of  it,  it  may 
appear  to  have  been  prior  to  such  arrest.1 

3d.  It  must  be  in  the  name  of  the  people  of  the  State  of  Illinois, 
as  required  by  the  Constitution.2 

4th.  It  must  be  under  the  hand  of  the  justice  or  magistrate  who 
issues  it.  This  is  expressly  required  by  statute,3  and  by  the  common 
law.4 

5th.  It  may  be  under  seal  or  not.  At  common  law  it  has  been 
said  a  seal  was  necessary  ;5  but  such  does  not  seem  to  be  the  case.6 
By  our  statute  it  is  only  necessary  that  it  should  be  under  the  hand  of 
the  justice.7 

6th.  It  should  not  be  general,  to  apprehend  all  persons  suspected, 
but  should  direct  the  officer  to  apprehend  some  particular  individual ; 
otherwise  it  will  be  void.8 

7th.  The  name  of  the  person  to  be  apprehended  should  be  accurately 
stated,  if  known,  and  must  not  be  left  in  blank  to  be  filled  up  after- 
wards.9 If  the  name  inserted  be  not  the  right  one,  or  be  fictitious, 
merely,  the  arrest  cannot  be  justified,  even  though  the  person  arrested 
be  the  one  intended  ;  unless,  indeed,  he  is  known  as  well  by  the  name 
in  the  warrant  as  by  his  true  name.10  But  if  the  name  of  the  party  be 
unknown,  the  warrant  may  be  issued  against  him  by  the  best  descrip- 
tion the  nature  of  the  case  will  allow  :  as,  "  the  body  of  a  man  whose 
name  is  unknown,  but  whose  person  is  well  known,  and  who  is 
employed  as  the  driver  of  cattle,  wears  a  white  hat,  and  has  lost  his 
right  eye."11  Yet  a  warrant  to  apprehend  "  Hood,  (omitting  the 
Christian  name,)  of  B.,  in  the  parish  of  F.,  by  whatsoever  name  he 
may  be  called  or  known,  the  son  of  Samuel  Hood,  to  answer,"  &c., 
was  held  defective,  as  omitting  the  Christian  name,  and  assigning  no 

(1)  2  Hawk.  P.  C.  Chap  13,  §  22;  2  Kale's  P.  0.  Ill;  1  Chit.  Crim.  L.  38,  39. 

(2)  Const.  111.  Art.  V.  §  26.  (3)  Rev.  Stat.  190,  Sec.  203. 

(4)  2  Hawk.  P.  C.  Chap.  13,  §  21;  1  Halo's  P.  C.  577. 

(5)  4  Black.  Com.  290;  2  Hawk.  P.  C.  Chap.  13,  §  21;  1  Hale's  P.  C.  577. 

(6)  Willes'  R.  411;  Bull  N.  P.  C.  83;  1  Chit.  Crim.  L.  38. 

(7)  Rev.  Stat.  190,  Sec.  203. 

(8)  4  Black  Com.  291;  1  Hale's  P.  C.  580;  1  Chit.  Crim.  L.  41,42. 

(9)  1  Chit.  Crim.  L.  39;  2  Hale's  P.  C.  114;  Post.  312. 

(10)  8  East.  328;  6  Co  wen,  456;  7  Id.  332;  3  Wend.  350;  4  Id.  555;  9  Id.  320;  2  Taunt.  400. 

(11)  1  Chit.  Crim.  L.  39,  40;  1  Hale's  P.  C.  577. 


168  WARRANT.  [PART  2, 

reason  for  the  omission,  nor  giving  any  distinguishing  particulars  of  the 
individual.1 

8th.  The  warrant  should  recite  the  accusation  made  by  the  com- 
plaint. Although  this  is  not  required  by  statute,  and  at  common 
law  it  was  deemed  rather  discretionary  than  necessary,  to  set  out  the 
accusation  in  the  warrant,  yet  the  practice  of  doing  so  has  been  univer- 
sally recommended.2 

9th.  The  warrant  must  be  properly  directed.  The  statute  requires 
that  it  shall  be  directed  to  all  sheriffs,  coroners,  and  constables  within 
the  State.3  If  a  private  person  is  authorized  to  execute  the  warrant, 
his  name  should  appear  in  the  warrant ;  that  is,  it  should  be  directed 
to  the  officers  before  named,  and  to  the  individual  who  is  to  execute  it, 
naming  him.4 

Return  of  the  warrant.  The  warrant  of  a  magistrate  is  not 
returnable  at  any  particular  time,  and  it  continues  in  force  until  it  is 
fully  executed  and  obeyed.5 

General  form  of  warrant  in  the  name  of  the  people. 
STATE  OF  ILLINOIS, 


COUNTY,      r  ss> 


The  people  of  the  State  of  Illinois  to    all  Sheriff's,   Coroners,  and 

Constables  of  said  State : 

Whereas  A.  B.  hath  this  day  made  complaint  on  oath  before  L.  M.,  a 
justice  of  the  peace  of  the  said  county,  that  (here  set  forth  the  offense:} 
We  therefore  command  you  forthwith  to  take  the  said  C.  D.  and 
bring  him  before  the  said  L.  M.,  or  in  case  of  his  absence,  before  any 
other  justice  of  the  peace  of  the  said  county,  to  be  dealt  with  according 
to  law.  Hereof  fail  not  at  your  peril.  Witness  the  said  L.  M.  at 

,  in  said  county,  the day  of ,  18 — . 

L.  M. 
Justice  of  the  peace. 

Form  of  warrant  directed  to  a  private  person. 

STATE  OF  ILLINOIS,  ^ 

COUNTY,      \  ss' 

The  people  of  the  State  of  Illinois  to  all  Sheriffs,    Coroners,  and 

Constables  of  said  county,  and  to  John  Doe: 
Whereas  A.  B.  hath  this  day  made  complaint  on  oath  before  L.  M., 

(1)  Rex  v.  Hood,  I.  M.  &  M.  281. 

(2)  See  1  Chit.  Crim.  L.  41 ;  2  Kale's  P.  C.  Ill ;  1  Id.  580 ;  Cro  Jac.  81 ;  2  Willes,  158, 

(3)  Rey.  Stat.  192,  Sec.  207.  (4)  Id  192,  Sec.  208.  (5)  Peake's  R.  334. 


CHAP.  3.]  WARRANT.  169 

a  justice  of  the  peace  of  the  said  county,  that  (here  set  forth  the 
offense.) 

We  therefore  command  you  forthwith  to  take  the  said  C.  D.  and 
bring  him  before  the  said  justice,  or  in  case  of  his  absence,  before  some 
other  justice  of  the  peace  of  the  said  county,  to  be  dealt  with  according 
to  law.  Hereof  fail  not.  In  witness  whereof  the  said  justice  hath 

hereunto  set  his  hand  at ,  in  the  county  aforesaid,  the 

day  of ,  18—. 

L.  M. 
Justice  of  the  Peace. 


Form  of  order  thereon. 

Ordered  that  John  Doe,  named  in  the  within  warrant,  be  hereby 
authorized  to  execute  the  same.     (Dated) 

L.  M. 
Justice  of  the  Peace. 


Warrant  for  Larceny. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


The  people  of  the   State  of  Illinois,  to  all  Sheriff's,  Coroners,  and 
Constables  of  said  State  : 

Whereas  A.  B.  hath  this  day  made  complaint  on  oath  before  L.  M., 
a  justice  of  the  peace  of  the  said  county,  that  on  this  present  day  at 

,  in  said  county,  divers  goods  and  chattels  of  him,  the  said 

A.  B.  of  the  value  of  fifty  dollars,  that  is  to  say,  one  silver  watch,  six 
silver  spoons,  and  one  coat,  were  feloniously  stolen,  takenx  and  carried 
away,  and  that  he  has  just  cause  to  suspect,  and  doth  suspect  that 
C.  D.  did  feloniously  steal,  take,  and  carry  away  the  same.  We 
therefore,  command  you  forthwith  to  take  the  said  C.  D.  and  bring 
him  before  the  said  justice,  or  in  case  of  his  absence,  before  some  other 
justice  of  the  peace  of  said  county,  to  be  dealt  with  according  to  law. 
In  witness  whereof  the  said  justice  hath  hereunto  set  his  hand  at 

,  in  said  county,  the day  of ,  18 — . 

L.  M. 
Justice  of  the  Peace. 


170  WARRANT.  [PART  2, 

Warrant  for  Burglary,  when  the  name  of  the  offender  is  unknown. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


The  people  of  the  State  of  Illinois  to  all  Sheriff's,    Coroners,  and 
Constables  of  said  State : 

Whereas  A.  B.  hath  this  day  made  complaint  on  oath  before  L.  M. 

a  justice  of  the  peace  of  said  county,  that  in  the  night  of  the 

day  of last,   (or  instant,)  the  dwelling  house  of  him,  the 

said  A.  B.  situate  in ,  in  said  county,  was  willfully  and  ma- 
liciously and  forcibly  broken  and  entered,  with  intent  the  goods  and 
chattels  of  the  said  A.  B.  in  said  dwelling  house  then  and  there  being, 
feloniously  to  steal,  take  and  carry  away :  and  one  silver  watch  of 
the  value  of  twenty  dollars,  (state  all  the  articles,  with  the  value  of 
each,*)  of  the  goods  and  chattels  of  the  said  A.  B.  was  feloniously  and 
burglariously  stolen,  taken  and  carried  away ;  and  that  he  hath  just 
cause  to  suspect,  and  doth  suspect  that  a  man  whose  name  is  unknown 
to  the  said  A.  B.,  but  whose  person  is  known  to  him,  and  who  is 
employed  as  the  driver  of  a  four-horse  team,  has  red  hair,  and  has  lost 
his  right  eye,  did  break  and  enter  the  said  dwelling  house,  and  commit 
the  said  felony  and  burglary. 

We  therefore,  command  you  forthwith  to  take  the  said  man,  whose 
name  is  so  unknown,  and  bring  him  before  said  justice,  or,  in  case  of 
his  absence,  before  some  other  justice  of  said  county,  to  be  dealt  with 
according  to  law.  In  witness  whereof  the  said  justice  hath  hereunto 

set  his  hand  at  ,  in  said  county,  the  day  of , 

18—. 

L.  M. 
Justice  of  the  Peace. 

Warrant  to  levy  hue  and  cry,  on  a  robbery  having  been  committed. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


The  people  of  the  State  of  Illinois  to  all  Sheriffs,    Coroners,  and 

Constables  of  said  State : 

Whereas  A.  B.  hath  this  day  made  complaint  on  oath  before  L.  M., 
a  justice  of  the  peace  of  the  said  county,  that  on  this  present  day  of 


CHAP.  3.]  WARRANT.  171 

,  18 — ,  at  a  place  called ,  in  said  county,  in  the  public 

highway  there,  two  persons,  to  him  the  said  A.  B.  unknown,  in  and 
upon  him  the  said  A.  B.,  did  make  an  assault,  and  him  the  said 
A.  B.  then  and  there  feloniously  did  put  in  great  fear  and  danger  of 
his  life,  and  seventy-five  pieces  of  the  coin  of  the  United  States,  called 
dollars,  of  the  goods  and  chattels  of  him  the  said  A.  B.  from  the 
person  and  against  the  will  of  him  the  said  A.  B.  then  and  there 
forcibly  and  feloniously  did  steal,  take  and  carry  away ;  and  that  one 
of  the  persons  to  him  the  said  A.  B.  unknown,  is  a  tall,  strong  man, 
and  seemeth  to  be  about  the  age  of  thirty-jive  years,  is  pitted  in  the 
face  with  small  pox,  and  hath  a  scar  of  a  wound  under  his  left  eye, 
and  had  then  on  a  dark  brown  riding  coat,  &c.,  and  did  ride  on  a  bay 
gelding  with  a  star  on  his  forehead.  And  the  other,  &c.  And  that, 
after  the  said  felony  and  robbery  was  committed,  the  said  persons,  to  him 
the  said  A.  B.  unknown,  did  fly  and  withdraw  themselves  to  places 
unknown,  and  are  not  yet  apprehended.  We  therefore,  command 
you  forthwith  to  raise  the  power  of  the  (precincts  or  towns)  in  your 
several  counties,  and  to  make  diligent  search  for  the  persons  above 
described,  and  to  make  fresh  pursuit,  and  hue  and  cry  after  them 
•from  precinct  to  precinct,  and  from  county  to  county,  as  well  by  horse 
as  by  footmen,  and  give  due  notice  thereof,  describing  the  persons 
and  the  offense  aforesaid,  unto  every  next  Sheriff,  Coroner  and  Con- 
stable on  every  side,  until  the  said  persons  shall  be  apprehended  :  and 
all  persons  whom  you  or  any  of  you  shall,  as  well  upon  search  and 
pursuit  as  otherwise,  apprehend  or  cause  to  be  apprehended,  as  justly 
suspected  for  having  committed  the  said  robbery  and  felony,  that  you 
do  carry  forthwith  before  some  justice  of  the  peace  of  the  county  where 
he  or  they  shall  be  apprehended,  to  be  by  such  justice  (and  some 
neighboring  justice  associated  with  him,)  examined  and  dealt  with 
according  to  law.  And  hereof  fail  you  not  respectively  upon  the  peril 
that  shall  ensue  thereon.  Given  under  the  hand  of  said  justice  at 

,  in  the  county  of ,  the day  of ,  18 — . 

L.  M. 
Justice  of  the  Peace. 


172  ARREST.  [PART  2, 

Another  form  of  warrant  to  levy  hue  and  cry,  on  a  robbery  having 
been  committed. 

STATE  OF  ILLINOIS, 

COUNTY. 

The  people  of  the   State  of  Illinois  to  all  Sheriff's,    Coroners,  and 
Constables  of  said  State  : 

Whereas,  A.  B.  hath  this  day  made  complaint  on  oath  before  L. 

M.,  one  of  the  justices  of  the  peace  of  said  county,  that  on  the  • 

day  of ,  185-,  at in  the  county  aforesaid,  C.  D.,  in  and 

upon  the  said  A.  B.  feloniously  did  make  an  assault,  and  one  silver 
watch,  the  property  of  the  said  A.  B.,  from  his  person,  and  against 
his  will,  by  force  did  then  and  there  feloniously  and  violently  take  and 
carry  away ;  and  after  the  said  felony  and  robbery  was  committed, 
the  said  C.  D.  did  fly  and  withdraw  himself  to  places  unknown,  and 
is  not  yet  apprehended.  We,  therefore,  command  you  and  every 
of  you  to  search  within  your  several  counties  for  the  said  C.  D., 
and  also  make  hue  and  cry  after  him  from  precinct  to  precinct,  and 
from  county  to  county,  and  that  as  well  by  horsemen  as  footmen,  and 
if  you  shall  find  him,  the  said  C.  D.,  that  then  you  carry  him  before 
some  one  of  the  justices  within  the  county  where  he  shall  be  taken,  to 
be  dealt  with  according  to  law.  Hereof  fail  you  not  respectively  at 

your  peril.     Given  under  the  hand  of  the  said  justice  at ,  in  the 

county  aforesaid,  this day  of ,  185-. 

L.  M., 
Justice  of  the  Peace. 


IV.    OF    THE   ARREST. 

An  arrest  in  criminal  cases  is  the  apprehension  or  restraining  of  one's 
person,  in  order  to  be  forthcoming  to  answer  an  alleged  or  suspected 
crime.  To  this  arrest  all  persons  whatsoever,  are,  without  distinction, 
equally  liable  in  all  criminal  cases  ;  but  no  man  is  to  be  arrested  unless 
charged  witli  such  a  crime  as  will  at  least  justify  holding  him  to  bail 
when  taken.1 

The  subject  of  arrests  pertains  more  particularly  to  the  duties  of 
constables,  and  will  therefore  be  treated  upon  more  at  length  in  that 
part  of  this  work  which  relates  to  the  powers  and  duties  of  constables. 

(1)  4  Bl.  Com.  290. 


CHAP.  3.]  EXAMINATION.  173 

V.  OF  THE  EXAMINATION. 

It  is  apprehended  that  but  few  suggestions  upon  the  subject  of  the 
examination  need  here  be  given.  The  language  of  the  statute  is,  no 
doubt,  sufficiently  explicit  upon  this  subject  to  supersede  the  necessity 
of  any  lengthy  illustration  in  reference  to  the  duties  of  the  justice  in 
this  respect,  and  a  mere  recurrence  to  the  statute,  an  extract  from 
which  has  already  been  given,  may  suffice.1  The  justice  before  whom 
any  person  may  be  brought  in  pursuance  of  a  warrant,  or  may  be 
brought  without  a  warrant,  and  charged  with  any  criminal  offense,  is 
required,  before  he  shall  commit  such  prisoner  to  jail,  admit  to  bail,  or 
discharge  from  custody,  to  inquire  into  the  truth  or  probability  of  the 
charge  exhibited  against  such  person,  by  the  oath  of  all  the  witnesses 
attending ;  and  upon  the  consideration  of  the  facts  and  circumstances 
then  proved,  he  will  either  commit  such  person  so  charged  to  jail,  ad- 
mit him  to  bail,  or  discharge  him  from  custody.2 

It  seems,  then,  that  the  examination  assumes  the  nature  of  a  trial  of 
issue  of  fact  before  the  justice,  without  a  jury,  and  may  be  conducted 
in  the  same  manner,  as  nearly  as  the  nature  of  the  case  will  admit ;  the 
prisoner  having  the  same  right  to  introduce  witnesses  as  if  on  trial. 
When  the  charge  is  for  sodomy,  rape,  arson,  burglary,  robbery,  forgery,  or 
counterfeiting,  it  is  the  duty  of  the  justice  to  associate  with  himself  some 
neighboring  justice  of  the  peace,  previous  to  the  examination  of  the 
witnesses,  who  together  will  have  power  to  bail  the  prisoner,  commit  to 
jail,  or  discharge  him,  according  to  the  proof  adduced,  and  the  law 
arising  thereon. 

Commitment  for  further  Examination. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  s* 

To  the  Keeper  of  the  Common  Jail  of  the  said  County : 

Receive  into  your  custody,  and  safely  keep  for  further  examination, 
C.  D.,  who  is  charged  before  me  with  having  stolen,  taken  and  carried 
away  a  horse,  the  property  of  one  A.  B. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day 

of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

(1)  See  ante,  p.  163.  (2)  Her.  Stat.  190,  Sec.  203. 


174  EXAMINATION.  [PART  2, 

The  same,  in  another  form. 
STATE  OF  ILLINOIS, 


COUNTY, 


To  any  Constable  of  the  said  County,  and  the  Keeper  of  the  Common 
Jail  of  the  said  County : 

Whereas,  C.  D.  is  now  brought  before  L.  M.,  a  justice  of  the  peace 
of  the  said  county,  upon  a  charge  under  oath  of  having  passed,  as  true 
and  genuine,  ten  counterfeit  pieces  of  the  silver  coin  of  the  United 
States,  current  in  this  State,  called  half  dollars,  with  intent  to  defraud 
A.  B.  These  are,  therefore,  in  the  name  of  the  people  of  the  State  of 
Illinois,  to  command  you,  the  said  constable,  to  convey  the  said  C.  D. 
to  the  common  jail  of  said  county,  and  deliver  him  to  the  keeper  thereof; 
and  you,  the  said  keeper,  are  hereby  required  to  receive  and  safely 
keep  the  said  C.  D.  in  your  custody,  in  said  jail,  for  further  examina- 
tion, and  until  he  shall  be  discharged  by  due  course  of  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day 

of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Order  to  bring  up  a  Prisoner  for  Examination. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      ]"  ss 

To  the  Keeper  of  the   Common  Jail  of  the  said  County : 

You  are  hereby  commanded  to  bring  C.  D.,  a  prisoner  in  your  cus- 
tody, to  my  office,  in ,  in  said  county,  for  further  examination. 

Given  under  my  hand  and  seal  this day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 

Summons  for  a  Witness  to  give  Evidence. 
STATE  OF  ILLINOIS, 


COUNTY, 


>  ss. 


To  any  Constable  of  the  said  County: 
Whereas,  complaint  has  been  made  by  A.  B.,  before  L.  M.,  a  jus- 


CHAP.  3.]  EXAMINATION.  175 

tice  of  the  peace  of  said  county,  that  (set  forth  the  offense  as  in  the 
warrant,)  and  an  information  given  that  G.  H.  is  a  material  and  neces- 
sary witness  to  be  examined  concerning  the  same  :  these  are,  therefore, 
in  the  name  of  the  people  of  the  State  of  Illinois,  to  require  you  to 
summon  the  said  G.  H.  to  appear  before  the  said  justice,  at  his  office 

at ,  in  the  said  county,  forthwith,  (or  on  the day  of 

instant,  at o'clock,  in  the noon,)  to  testify  the 

truth,  according  to  his  knowledge,  concerning  the  premises. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day 

of  _      _  18—. 

L.  M., 
Justice  of  the  Peace. 

Summons  for  a    Witness,  where  two  Justices  are  required  to  be  asso- 
ciated to  take  the  Examination. 

STATE  OF  ILLINOIS,  ) 

COUNTY,      j  Si 

To  any  Constable  of  said  County: 

Whereas,  complaint  has  been  made  by  A.  B.,  before  L.  M.,  a  jus- 
tice of  the  peace  of  said  county,  that  (here  set  forth  the  offense  as  in 
the  warrant,)  and  information  given  that  G.  H.,  S.  R.,  K.  L.,  and 
M.  N.  are  material  and  necessary  witnesses  to  be  examined  concerning 
the  same  :  these  are,  therefore,  in  the  name  of  the  people  of  the  State 
of  Illinois,  to  command  and  require  you  to  summon  the  said  G.  H., 
S.  R.,  K.  L.  and  M.  N.  to  appear  before  the  said  justice,  (the  name 
of  the  neighboring  justice  may  be  inserted,)  and  some  neighboring  jus- 
tice to  be  by  him  associated  with  himself,  at  the  office  of  the  said , 

in ,  in  said  county,  forthwith,  (or  on  the day  of , 

instant,  at  o'clock,  in  the  noon,)  to  testify  the  truth 

according  to  their  knowledge,  concerning  the  premises. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,  18—. 

L.  M., 

Justice  of  the  Peace. 
The  like,  when  issued  by  two  Justices. 

STATE  OF  ILLINOIS, 

COUNTY, 

To  any  Constable  of  said  County  : 
Whereas,  complaint  has  been  made  by  A.  B.,  before  L.  M.,  a  justice 


176  EXAMINATION.  [PART  '2. 

of  the  peace  of  said  county,  that  {here  set  forth  the  offense  as  in  the 
warrant,}  and  information  given  that  G.  H.  is  a  material  witness,  and 
necessary  to  be  examined  concerning  the  same.  These  are,  therefore, 
to  command  you,  in  the  name  of  the  people  of  the  State  of  Illinois,  to 
summon  the  said  G.  H.  to  appear  before  the  said  L.  M.,  and  0.  P.,  a 
neighboring  justice  associated  with  him,  at  the  office  of  the  said  L.  M., 

forthwith,  (or  on  the day  of 18 — ,  at o'clock, 

in  the noon,^  to  testify  the  truth  according  to  his  knowledge,  con- 
cerning the  premises. 

Given  under  the  hands  and  seals  of  the  said  justices,  the day 

of ,  18—. 

L.  M., 

0.  P., 

Justices  of  the  Peace. 

Warrant  for  a  Witness  in  case  of  Felony. 


STATE  OP  ILLINOIS, 
COUNTY, 


>•  ss. 


To  any  Constable  of  said  County  : 

Whereas,  oath  hath  been  made  before  L.  M.,  a  justice  of  the  peace 
of  the  said  county,  by  A.  B.,  that  a  horse  of  the  said  A.  B.  was  lately 

stolen,  taken  and  carried  away,  at ,  in  the  county  aforesaid,  and 

that  he  has  good  cause  to  believe  that  G.  H.  is  a  material  witness  to 
prove  by  whom  the  said  larceny  was  committed.  These  are,  therefore, 
in  the  name  of  the  people  of  the  State  of  Illinois,  to  require  you  to 
cause  the  said  G.  H.  forthwith  to  come  before  the  said  justice,  to  give 
such  information  and  evidence  as  he  knoweth  concerning  said  felony. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day 

of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Warrant  against  a  Witness  who  has  refused  to  attend  on  Summons. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      \  Si 

To  any  Constable  of  said  County: 

These  are  in  the  name  of  the  people  of  the  State  of  Illinois,  to  com- 
mand you,  upon  sight  hereof,  to  take  G.  H.  and  bring  him  before  the 


CHAP.  3.]  EXAMINATION.  177 

subscriber,  a  justice  of  the  peace  of  the  said  county,  to  answer  all  such 
matters  and  things  as,  on  behalf  of  the  said  people,  are  on  oath  objected 
against  him,  by  A.  B.,  for  that  he,  the  said  G.  H.,  being  a  material  witness 
to  prove  a  certain  felony  lately  committed,  and,  having  been  duly  sum- 
moned to  give  evidence  touching  the  same,  hath  neglected  to  appear  in 
pursuance  of  said  summons. 

Given  under  the  hand  and  seal  of  the  sai4  justice,  this day 

of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Commitment  of  a  Witness  for  refusing  to  give  evidence. 

» 

STATE  OF  ILLINOIS,  ) 

COUNTY,      )  ss 

To  any  Constable  of  the  said  County,  and  the  Keeper  of  the  Common 

Jail  of  the  said  County : 

These  are  in  the  name  of  the  people  of  the  State  of  Illinois,  to  com- 
mand you,  the  said  constable,  forthwith  to  convey  and  deliver  into  the 
custody  of  the  said  keeper,  the  body  of  G.  H. ,  this  day  brought  before 
the  subscriber,  one  of  the  justices  of  the  peace  of  said  county,  for  that 
he,  the  said  G.  H.  having  knowledge  that  a  certain  felony  and  larceny 
was  committed  in  the  county  aforesaid,  that  is  to  say,  that  a  certain 
horse,  the  property  of  the  said  A.  B.,  was  feloniously  stolen,  taken  and 

carried  away  by  C.  D.,  on  the day  of last,  touching 

which  the  said  G.  H.  can  give  material  evidence,  has  refused  to  be  ex- 
amined on  oath  respecting  the  same  ;  and  you,  the  said  keeper,  are 
hereby  required  to  receive  the  said  G.  H.  into  your  custody,  in  the  said 
jail,  and  him  there  safely  keep,  until  he  shall  submit  to  be  examined 
touching  the  said  felony,  or  shall  be  discharged  by  due  course  of  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day 

of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Oath  of  Complainant  or  Witness  on  the  Examination. 

You  do  swear,  that  the  evidence  you  shall  give  between  the  people 
of  the  State  of  Illinois,  and  C.  D.,  touching  the  charge  exhibited  against 
him,  now  in  hearing,  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth  :  so  help  you  God. 

11 


178  BAIL  AND  RECOGNIZANCE.  [PART  2,    ' 

Form  of  Affirmation. 

You  do  solemnly,  sincerely,  and  truly  declare  and  affirm,  that  the 
evidence  that  you  shall  give  between  the  people  of  the  State  of  Illinois 
and  C.  D.,  touching  the  charge  exhibited  against  him,  now  in  hearing, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth  :  and  this 
you  do  under  the  pains  and  penalties  that  may  ensue  thereon. 


VI.  OF  PROCEEDINGS  SUBSEQUENT  TO  THE  EXAMINATION. 

1.    Of  the  Discharge. 

The  examination  of  a  prisoner,  when  brought  before  a  justice  of  the 
peace,  charged  with  having  committed  a  criminal  offense,  was  formerly 
an  ex  parte  inquiry,  and  the  prisoner  was  not  allowed  the  benefit  of 
counsel,  or  the  privilege  of  introducing  exculpatory  evidence.  And  if 
an  express  charge  of  felony  on  oath,  against  the  prisoner,  was  made, 
though  his  guilt  appeared  doubtful,  yet  the  justice  could  not  wholly 
discharge  him,  but  must  have  bailed  or  committed  him.  And  if  a 
person  was  brought  before  a  justice,  charged  with  having  committed  a 
felony,  or  upon  suspicion  thereof,  though  it  appeared  to  the  justice  that 
the  prisoner  was  not  guilty,  it  seems  to  have  been  the  duty  of  the  justice 
to  commit  him  to  prison,  or  at  least  to  join  with  some  other  in  the  bail- 
ment of  him,  to  the  end  the  party  may  be  discharged  by  a  lawful  trial. 
This  rule,  however,  has  been  modified,  and  the  justice  is  not  required 
to  commit  any  one  unless  a  prima  facie  case  is  made  out  against  him 
by  witnesses  entitled  to  a  reasonable  degree  of  credit.1 

Under  our  statute,  as  we  have  before  seen,2  the  justice  must  dis- 
charge the  prisoner,  unless  from  the  facts  and  circumstances  proved, 
there  shall  be  a  probability  of  the  truth  of  the  charge  exhibited  against 
him.8 

2.    Of  Bail  and  Recognizance. 

After  the  examination,  should  the  justice  determine  that  there  is  a 
probability  of  the  truth  of  the  charge  exhibited  against  the  prisoner,  he 
will  admit  him  to  bail  in  such  sum  as  he  shall  think  the  case  demands, 
and  take  his  recognizance  with  good  and  sufficient  security  for  his  ap- 

(1)  1  Barn.  &  Ores.  50.  (2)  Ante  p.  163.  (3)  Rev.  Stat.  191,  Sec.  203. 


ClIAP.    3.]  RECOGNIZANCE  OF  PRISONER.  179 

pearance  at  and  on  the  first  day  of  the  next  circuit  court,  or  if  the 
court  be  then  sitting,  on  some  day  of  the  term,  to  be  therein  desig- 
nated,1 unless  the  offense  charged  be  for  treason,  murder,  or  any  other 
offense  punishable  with  death. - 

All  recognizances  that  have  any  relation  to  criminal  matters  must  be 
taken  to  the  people  of  the  State  of  Illinois,  and  signed  by  the  person 
or  persons  entering  into  the  same,  certified  by  the  justice  of  the  peace 
taking  the  same,  and  delivered  to  the  clerk  of  the  circuit  court,  on  or 
before  the  day  therein  mentioned  for  the  appearance  of  the  accused.8 

Recognizance  of  a  Prisoner. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  Sk 

Be  it  remembered,  that  on  the day  of ,  185-,  C.  D. 

of ,  in  the  county  aforesaid,  and  E.  F.  and  Gr.  H.,  of , 

in  the  county  aforesaid,  personally  came  before  L.  M.,  a  justice  of  the 
peace  of  the  said  county,  (if  taken  by  two  justices,  then  say :  "  before 
us,  L.  M.  and  R.  S.,  two  of  the  justices  of  the  peace  of  the  said 
county,")  and  severally  and  respectively  acknowledged  themselves  to 
owe  to  the  people  of  the  State  of  Illinois,  that  is  to  say,  the  said  C.  D. 
the  sum  of  two  hundred  dollars,  and  the  said  E.  F.  and  Gr.  H.  each 
the  sum  of  two  hundred  dollars,  to  be  made  and  levied  of  their 
respective  goods  and  chattels,  lands  and  tenements,  to  the  use  of  the 
said  people,  if  default  shall  be  made  in  the  following  condition  : 

The  condition  of  this  recognizance  is  such  that  if  the  said  C.  D. 
shall  personally  appear  at  the  next  term  of  the  circuit  court,  to  be  held 

in  and  for  the  said  county  of ,  on  the  first  day  thereof,  to  answer 

to  an  indictment  to  be  preferred  against  him  for  (here  set  forth  the 
offense  briefly,}  and  to  do  and  receive  what  shall  be  by  the  court  then 
and  there  enjoined  upon  him,  and  shall  not  depart  the  court  without 
leave,  then  this  recognizance  to  be  void,  otherwise  to  remain  in  full 
force. 

Taken,  subscribed,  and  acknowledged^  C.  D. 

the    day   and  year  first  above  written,  E.  F. 

before  L.  M.,  G.  H. 

Justice  of  the  Peace.  J 

(1)  Rev.  Stat.  191,  Sec.  203.  (2)  Ibid.  (3)  Rev.  Stat.  191,  Sec.  205. 


180  RECOGNIZANCE  OF  PRISONER.  [PART  2, 

Form  of  Recognizance  of  two  Prisoners. 
STATE  OF  ILLINOIS, 


COUNTY,       f ss< 


Be  it  remembered,  that  on  the  —  day  of 18 — ,  C.  D.,  and  J. 

K.,  of ,  in  the  county  aforesaid,  and  E.  F.  and  G.  H.,  of ,  in 

the  county  aforesaid,  personally  came  before  L.  M.,  a  justice  (if  taken 
by  two  justices,  then  say:  "before  us,  L.  M.,  and  R.  S.,  two 
justices")  of  the  peace  of  the  said  county,  and  severally  acknowledged 
themselves  to  owe  to  the  people  of  the  State  of  Illinois,  that  is  to  say, 
the  said  C.  D.  and  J.  K.,  the  sum  of  three  hundred  dollars  each, 
and  the  said  E.  F.  and  G.  H.  the  sum  of  three  hundred  dollars,  to  be 
respectively  levied  of  their  several  goods  and  chattels,  lands  and  tene- 
ments, to  the  use  of  the  said  people,  if  default  shall  be  made  in  the 
condition  following  : 

The  condition  of  this  recognizance  is  such,  that  if  the  above  bounden 
C.  D.  and  J.  K.  shall  personally  be  and  appear  at  the  next  term  of 

the  circuit  court,  to  be  held  in  and  for  the  said  county  of ,  on 

the  first  day  thereof,  then  and  there  to  answer  to  an  indictment  to  be 
preferred  against  them,  for  (here  state  the  offense  briefly,)  and  to  do 
and  receive  what  shall  by  the  court  be  then  and  there  enjoined  upon 
them,  and  shall  not  depart  the  court  without  leave,  then  this  recogniz- 
ance to  be  void,  or  else  to  remain  in  full  force. 


Taken,  subscribed,  and  acknowledged, 
the  day  and  year  above  written,  before 

L.  M., 
Justice  of  the  Peace. 


C.  D. 
J.  K. 
E.  F. 
G.  H. 


Form  of  Recognizance  by  an  Infant  or  Married  Woman. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  ss' 

Be  it  remembered,  that  on  the day  of ,  185-,  E.  F. 

and  G.  H.,  of  the  county  aforesaid,  personally  came  before  L.  M.,  a 
justice  of  the  peace  of  the  said  county,  and  severally  and  respectively 
acknowledged  themselves  to  owe  the  people  of  the  State  of  Illinois  the 
sum  of dollars,  to  be  levied  of  their  respective  goods  and  chat- 
tels, lands  and  tenements,  to  the  use  of  the  said  people,  if  default 
shall  be  made  in  the  condition  following  : 

The  condition  of  this  recognizance  is  such  that  if  I.  J.,  who  is  an 
infant,  (or  "married  woman,")  shall  personally  appear,  (a*  in  pre- 
ceding forms.) 


ClIAP.   3.]  COMMITMENT. MITTIMUS.  181 

3.  Of  Commitment. 

If  no  bail  be  offered  by  the  person  charged,  or  if  such  as  may  be 
offered  be  considered  by  the  justice  to  be  insufficient,  it  will  be  his 
duty  to  commit  such  person  to  jail,  there  to  remain  until  he  shall  be 
discharged  by  due  course  of  law. 

The  warrant  of  commitment  in  such  cases  is  technically  called  a 
mittimus,  which  is  a  precept  in  writing  under  the  hand  and  seal  of  the 
justice,  or  other  competent  officer,  directed  to  the  jailer  or  keeper  of 
a  prison,  commanding  him  to  receive  and  safely  keep,  a  person  charged 
with  an  offense  therein  named,  until  he  shall  be  delivered  by  due 
course  of  law.1  Under  our  statute  it  is  not  essential,  however,  to  the 
validity  of  a  warrant  of  commitment,  that  it  should  be  under  the  seal 
of  the  justice ;  being  under  his  hand,  it  will  be  as  valid  as  if  a  seal  were 
affixed.2 

Form  of  Mittimus  by  one  Justice  for  an  Offence  not  bailable. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


The  People  of  the  State  of  Illinois,  to  any  Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County : 

Whereas  C.  D.  has  been  arrested,  and  this  day  brought  before 
L.  M.,  one  of  the  justices  of  the  peace  of  the  said  county,  charged  on 
the  oath  of  A.  B.  with  [having  feloniously,  wilfully  and  of  malice 

aforethought,  killed  and  murdered  Gr.  H.  at  ,  in  the  county 

aforesaid,  who  was  on  the day  of instant,  there  found 

dead ;]  and  having  inquired  into  the  truth  and  probability  of  the 
charge  exhibited  against  him,  by  the  oath  of  all  witnesses  attending ; 
and  upon  consideration  of  the  facts  and  circumstances  proved,  the  said 
justice  did  adjudge  that  the  said  offense  had  been  committed,  and  did 
further  adjudge  the  said  C.  D.  to  be  guilty  of  having  committed  the 
said  felony  and  murder.  We  therefore  command  you  the  said  con- 
stable forthwith  to  convey  the  said  C.  D.  to  the  common  jail  of  the 
said  county,  and  him  deliver  to  the  keeper  thereof ;  and  you  the  said 
keeper  are  hereby  required  to  receive  the  said  C.  D.  into  your  custody 
in  the  said  jail,  and  him  there  safely  keep  until  he  shall  be  discharged 

(1)  2  Bouv.  L.  D.  Title  "  Mittimus."  (2)  Rev.  Stat.  192,  Sec.  210. 


182  MITTIMUS.  [PART  2, 

by  duo  course  of  law.     Witness  the  said  L.  M.  at  ,  in  the 

county  of ,  the day  of \  18 — . 

L.  M., 

Justice  of  the  Peace. 

The  names  and  residences  of  the  principal  witnesses  must  in  all 
cases  be  written  on  the  warrant  of  commitment.1 

Form  of  Mittimus  by  one  Justice  for  a  bailable  case. 

STATE  OP  ILLINOIS,  ) 
COUNTY,      ) 

The  People  of  the  State  of  Illinois  to  any   Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County  : 

Whereas  0.  D.  has  been  arrested  and  this  day  brought  before 
L.  M.,  one  of  the  justices  of  the  peace  of  the  said  county,  charged  on 
the  oath  of  A.  B.  with  [suspicion  of  feloniously  stealing,  taking,  and 

carrying  away  at ,  in  the  county  aforesaid,  on  the day 

of ,  instant,  one  sorrel  horse  of  the  value  of  fifty  dollars,  the 

property  of  the  said  A.  B.,  which  was  then  and  there  stolen,]  and 
having  inquired  into  the  truth  and  probability  of  the  charge  exhibited 
against  him  by  the  oath  of  all  witnesses  attending,  and  upon  consider- 
ation of  facts  and  circumstances,  the  said  justice  did  adjudge  that  the 
said  offense  had  been  committed,  and  that  there  was  probable  cause  to 
believe  the  said  C.  D.  to  be  guilty  thereof,  and  required  him  to  enter 
into  a  recognizance  with  good  and  sufficient  sureties  in  the  sum  of 
two  hundred  and  ffty  dollars,  for  his  personal  appearance  at  the  next 

term  of  the  circuit  court  to  be  held  in  and  for  the  county  of , 

on  the  first  day  thereof,  with  which  requisition  he  has  failed  to  comply. 

We  therefore  command  you  the  said  constable  forthwith  to  carry  the 
said  C.  D.  to  the  common  jail  of  the  said  county,  and  deliver  him  to 
the  keeper  thereof;  and  you  the  said  keeper  are  hereby  required  to 
receive  the  said  C.  D.  into  your  custody  in  the  said  jail,  and  him 
there  safely  keep  for  the  want  of  sureties  until  he  shall  be  discharged 

by  due  course  of  law.     Witness  the  said  L.  M.,  at  ,  in  the 

county  of ,  the day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 

(1)  Rev.  Stat.  193,  Sec.  212. 


CHAP.  3.]  MITTIMUS.  183 

Form  of  Indorsement  on  the  foregoing. 

i 
"  Bail  ought  to  be  taken  in  the  sum  of  $ ." 

L.  M.,  Justice  of  Peace. 

Form  of  Mittimus  by  two  Justices. 

STATE  OF  ILLINOIS,  "> 
COUNTY,      |  SJ 

The  People  of  the   State  of  Illinois,  to  any  Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County : 

Whereas  C.  D.  has  been  arrested  and  brought  before  L.  M.,  one 
of  the  justices  of  the  peace  of  the  said  county,  charged  on  the  oath  of 

A.  B.  with  [having  on  the day  of ,  18 — ,  feloniously 

and  falsely  made,  forged,  and  counterfeited  a  certain  promissory  note, 
purporting  to  be  the  promissory  note  of  A.  B.  to  the  said  C.  D.,  for  the 
payment  of  fifty  dollars,]  and  the  said  justice  having  associated  with 
him,  K.  L.,  a  neighboring  justice  of  the  peace  of  the  said  county,  and 
they,  having  taken  the  examination  of  the  witnesses,  and  considered 
the  proofs  adduced  and  the  law  arising  thereon,  did  adjudge  that  the 
said  offense  had  been  committed,  and  that  there  was  probable  cause  to 
believe  the  said  C.  D.  to  be  guilty  of  the  charge  exhibited  against  him, 
and  required  him  to  enter  into  a  recognizance  with  good  and  sufficient 

sureties  in  the  sum  of dollars,  for  his  personal  appearance  at 

the  next  term  of  the  circuit  court  to  be  held  in  and  for  the  county  of 

,  on  the  first  day  thereof,  with  which  requisition  the  said  C.  D. 

has  failed  to  comply. 

We  therefore  command  you  the  said  constable,  forthwith  to  convey 
the  said  C.  D.  to  the  common  jail  of  the  said  county,  and  deliver  him 
to  the  keeper  thereof;  and  you  the  said  keeper  are  hereby  required 
to  receive  the  said  C.  D.  into  your  custody  in  the  said  jail,  and  him 
there  safely  keep  for  the  want  of  sureties  until  he  shall  be  discharged 

by  due  course  of  law.    Witness  the  said  L.  M.  and  K.  L.,  at , 

in  the  county  of ,  the day  of ,  18 — . 

L.  M.,  Justice  of  Peace. 

K.  L.,  Justice  of  Peace. 

Form  of  Indorsement  on  the  above. 

"  Bail  ought  to  be  taken  in  the  sum  of  $ ." 

L.  M.,  Justice  of  Peace. 


184  MITTIMUS.  [PART  2, 

Form  of  Mittimus  where  Prisoner  confessed  the  Offence. 

STATE  OF  ILLINOIS,  > 
COUNTY,      j  Sk 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 

and  to  the  Keeper  of  the  Common  Jail  of  the  said  County : 

These  are  to  command  you  the  said  constable  forthwith  to  convey 

and  deliver  into  the  custody  of  the  keeper  of  the  common  jail  of  the 

said  county,  the  body  of  C.  D.,  this  day  brought  before  L.  M.,  one  of 

the  justices  of  the  peace  in  and  for  the  said  county,  and  charged  upon 

the  oath  of  A.  B.  with  [having  on  the day  of ,  18 — , 

at  ,  in  the  county  aforesaid,  feloniously  stolen,   taken   and 

carried  away  one  gold  watch,  of  the  value  of  fifty  dollars,  the  property 
of  the  said  A.  B.,]  which  the  said  C.  D.  has  confessed  upon  his 
examination  before  the  said  justice  of  the  peace,  and  having  been 
required  by  the  said  justice  to  enter  into  a  recognizance  with  sufficient 
sureties  for  his  appearance  the  first  day  of  the  next  term  of  the  circuit 
court  to  be  held  in  and  for  the  county  of ,  with  which  requisi- 
tion the  said  C.  D.  has  failed  to  comply  :  and  you  the  said  keeper  are 
hereby  required  to  receive  the  said  C.  D.  into  your  custody  in  the 
said  jail,  and  him  there  safely  keep,  for  the  want  of  sureties,  until  he 
shall  be  discharged  by  due  course  of  law.  Witness  the  said  justice 

at ,  in  the  county  of ,  the day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 

Form  of  Indorsement  on  the  above. 

"  Bail  ought  to  be  taken  in  the  sum  of  $ ." 

L.  M., 
Justice  of  the  Peace. 

Mittimus  by  a  Justice  for  an  Offence  in  his  presence. 


STATE  OF  ILLINOIS, 
COUNTY 


ns,  ) 

,  iss- 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 

and  to  the  Keeper  of  the  Common  Jail  of  the  said  County: 
These  are  to  command  you  the  said  constable  forthwith  to  convey 
and  deliver  into  the  custody  of  the  keeper  of  the  common  jail  of  the 


ClIAP.    3.]  RECOGNIZANCE  OF  WITNESSES.  185 

said  county,  the  body  of  C.  D.,  charged  by  L.  M.,  one  of  the  justices 
of  the  peace  of  the  said  county,  upon  the  view  of  the  said  justice,  with 

having  on  this  present  day  at  ,  in  the  said  county,  with  an 

abandoned  heart,  and  without  provocation,  feloniously,  with  a  deadly 
weapon,  to  wit,  a  hatchet,  made  an  assault  upon  A.  B.,  with  intent  to 
inflict  upon  the  person  of  the  said  A.  B.,  a  bodily  injury,  he,  the  said 
C.  D.  having  been  required  to  enter  into  a  recognizance  with  sufficient 
sureties  to  be  and  appear  tat  the  next  term  of  the  circuit  court  to  be  held 

in  and  for  the  county  of ,  on  the  first  day  thereof,  and  having 

neglected  to  comply  with  such  requisition ;  and  you  the  said  keeper  are 
hereby  required  to  receive  the  said  C.  D.  into  your  custody  in  the  said 
jail,  and  him  there  safely  keep  for  want  of  sureties  until  he  shall  be 

discharged  by  due  course  of  law.     Witness  the  said  L.  M.  at , 

in  the  county  aforesaid,  the day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 


Form  of  Indorsement  on  the  above. 

"  Bail  ought  to  be  taken  in  the  sum  of  $ ." 

L.  M., 
Justice  of  the  Peace. 

4.   Of  Recognizance  of  Witnesses. 

Rev.  Stat.  191,  Sec.  204.  "  It  shall  be  the  duty  of  the  judge  or 
justice  of  the  peace  who  shall  commit  any  offender  to  jail  as  aforesaid, 
or  admit  him  to  bail,  to  bind  by  recognizance,  the  prosecutor,  and  all 
such  as  do  declare  anything  material  to  prove  the  offence  charged, 
to  appear  before  the  next  circuit  court  on  the  first  day  thereof,  or  if 
the  said  court  shall  be  then  sitting,  on  some  day  to  be  therein  desig- 
nated, (and  in  all  cases  at  the  same  time  and  place  as  the  person  or 
persons  accused  by  said  witnesses  shall  be  bound  to  appear,)  to  give 
evidence  touching  the  offence  so  charged,  and  not  depart  the  court 
without  leave.  If  any  person,  upon  being  required  to  enter  into 
recognizance  as  aforesaid,  shall  refuse,  it  shall  be  lawful  for  such  judge 
or  justice  of  the  peace,  to  commit  him  or  her  to  jail,  there  to  remain 
until  he  or  she  shall  enter  into  such  recognizance,  or  be  otherwise 
discharged  by  due  course  of  law." 


186  RECOGNIZANCE  OF  WITNESSES.  [PART  2, 

Form  of  Recognizance  of  a  Witness. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      \ 

Be  it  remembered  that  on  the day  of ,  18 — ,  A.  B. 

of ,  in  the  county  aforesaid,  comes  before  L.  M.,  a  justice  of 

the  peace  of  the  said  county,  and  acknowledges  himself  to  owe  the 

people  of  the  State  of  Illinois  the  sum  of  — : dollars,  to  be  made 

and  levied  of  his  goods  and  chattels,  lands  and  tenements,  to  the  use 
of  the  said  people,  if  default  shall  be  made  in  the  condition  following  : 

The  condition  of  this  recognizance  is  such,  that  if  the  said  A. 
B.  shall  personally  be  and  appear  at  the  next  term  of  the  circuit 

court  to  be  held  in  and  for  the  said  county  of ,  on  the  first  day 

thereof,  to  give  evidence  on  behalf  of  the  said  people  against  C.  D.  for 
[feloniously  stealing,  taking  and  carrying  away  a  silver  watch,  the 
property  of  A.  B.,]  as  well  to  the  grand  jury  as  to  the  petit  jury,  and 
do  not  depart  the  court  without  leave,  then  this  recognizance  to  be 
void,  otherwise  to  remain  in  full  force  and  effect. 

Taken,    subscribed    and   acknow-   ]  A.  B. 

lodged  the  day  and  year  first  above 
written,  before  L.  M., 

Justice  of  the  Peace. 

Form  of  Recognizance  by  several  Witnesses. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      J  si 

Be  it* remembered,  that  on  the day  of ,  18 — ,  A.  B., 

E.  F.  and  Gr.  H.,  all  in  the  county  aforesaid,  came  before  L.  M.,  a 
justice  of  the  peace  of  said  county,  and  each  of  them  separately 
acknowledges  himself  severally  and  individually  to  owe  to  the  people 

of  the  State  of  Illinois  the  sum  of • —  dollars,  to  be  made  and 

levied  of  his  goods  and  chattels,  lands  and  tenements,  to  the  use  of  the 
said  people,  if  default  shall  be  made  in  the  condition  following  : 

The  condition  of  this  recognizance  is  such,  that  if  the  said  A.  B., 
E.  F.  and  G.  H.  shall  severally  appear  at  the  next  term  of  the  circuit 
court,  on  the  first  day  thereof,  to  be  held  in  and  for  the  said  county  of 

,  to  give  evidence  in  behalf  of  the  said  people,  against  C.  D.,  for 

(here  state  the  offense  briefly,)  as  well  to  the  grand  jury  as  to  the  petit 


ClIAP.  3.]  RECOGNIZANCE    OP    WITNESSES.  187 

jury,  and  do  not  depart  the  court  without  leave,  then  this  recognizance 
to  be  void,  otherwise  to  remain  in  full  force. 

Taken,  subscribed  and  acknowledged,  ^  A.  B. 

the  day  and  year  first  above  written,  be-  L  E.  F. 

fore  L.  M.,  J.  P.     j  G.  H. 

For  a  Recognizance  of  a  Witness  with  Sureties. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


Be  it  remembered,  that  on  the r  day  of ,  18 — ,  A.  B.,  of 

-,  in  the  county  aforesaid,  and  E.  F.  and  Gr.  H.  of  the  same  place, 


personally  came  before  L.  M.,  a  justice  of  the  peace  of  the  said  county, 
and  severally  and  respectively  acknowledged  themselves  to  owe  to  the 
people  of  the  State  of  Illinois,  that  is  to  say,  the  said  A.  B.,  the  sum 

of dollars,  and  the  said  E.  F.  and  Gr.  H.,  each  the  sum  of 

dollars,  to  be  levied  of  their  respective  goods  and  chattels,  lands  and 
tenements,  to  the  use  of  the  said  people,  if  default  shall  be  made  in  the 
condition  following  : 

The  condition  of  this  recognizance  is  such,  that  if  the  said  A.  B. 
shall  personally  appear  on  the  first  day  of  the  next  term  of  the  circuit 
court,  (conclude  as  in  the  preceding  forms,  page  186,  by  varying  to 
suit  the  case.) 

Form  of  Recognizance  by  Sureties,  by  an  Infant  or  Married  Woman. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      C 


Be  it  remembered,  that  on  the day  of ,  18 — ,  E.  F. 

and  Gr.  H.,  of  the  county  aforesaid,  personally  came  before  L.  M.,  one 
of  the  justices  of  the  peace  of  the  said  county,  and  severally  and  re- 
spectively acknowledged  themselves  to  owe  to  the  people  of  the  State 

of  Illinois,  each  the  sum  of dollars,  to  be  levied  of  their  goods 

and  chattels,  lands  and  tenements,  to  the  use  of  the  said  people,  if  de- 
fault shall  be  made  in  the  condition  following  : 

The  condition  of  this  recognizance  is  such,  that  if  I.  J.,  who  is  an 
infant,  (or  "  married  woman,")  shall  personally  appear  on  the  first  day 
of  the  next  circuit  court,  {conclude  as  in  the  preceding  forms,  page 
186,  by  varying  to  suit  the  case.) 


188  COMMITMENT  OF  WITNESSES.  [PART  2, 

Commitment  of  a  Witness  for  refusing  to  enter  into  a  Recognizance. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      j  K 

The  People  of  the  State  of  Illinois  to  any   Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County: 

We  command  you,  the  said  constable,  forthwith  to  convey  and  deliver 
into  the  custody  of  the  said  keeper,  the  body  of  G.  H.,  it  appearing  by 
the  examination  of  the  said  G.  H.,  taken  on  oath  before  L.  M.,  one  of 
the  justices  of  the  peace  of  the  said  county,  that  he  is  a  material  witness 
against  C.  D.,  on  a  charge  made  on  oath  against  the  said  C.  D.,  for 
(here  set  forth  the  offense  truly,)  it  having  been  adjudged  by  the  said 
justice,  that  the  said  offense  has  been  committed,  and  that  there  is  pro- 
bable cause  to  believe  the  said  C.  D.  to  be  guilty  thereof :  and  the  said 
G.  H.  having  been  required  to  enter  into  a  recognizance  in  the  sum  of 

dollars,  for  his  personal  appearance  at  the  next  term  of  the 

circuit  court,  to  be  held  in  and  for  the  county  of ,  on  the  first 

day  thereof,  to  give  evidence,  in  behalf  of  the  pepple,  against  the  said 
C.  D.  for  the  offense  aforesaid,  with  which  requisition  the  said  G.  H.  has 
refused  to  comply;  and  you,  the  said  keeper  of  the  said  jail,  are  hereby 
required  to  receive  the  said  G.  H.  into  your  custody  in  the  said  jail,  and 
him  there  safely  keep,  until  he  shall  enter  such  recognizance,  or  be  other- 
wise discharged  according  to  law. 

Witness  the  said  justice  at ,  in  the  county  of ,  the 

day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Form  of  Commitment  of  Witness  for  want  of  Sureties. 
STATE  OF  ILLINOIS, 


COUNTY 


jINOIS>  I  ss 

«TY,        j 


The  People  of  the  State  of  Illinois  to  any  Constable  of  the  said 

County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County  : 

We  command  you,  the  said  constable,  forthwith  to  convey  and  deliver 

into  the  custody  of  the  keeper  of  the  common  jail  of  the  said  county, 

thj  body  of  G.  H.,  it  appearing  by  the  examination  of  the  said  G.  H., 

taken  on  oath  before  L.  M.,  one  of  the  justices  of  the  peace  of  the  said 

county,  that  he  is  a  material  witness  against  C.  D.,  on  a  charge  made 

on  oath  against  him,  for  (Jiere  set  forth  the  offense  briefly,)  it  having 


ClIAP.  3.}  COMMITMENT   OF   ACCOMPLICE.  189 

been  adjudged  by  the  said  justice  that  the  said  offense  has  been  com- 
mitted, and  that  there  is  probable  cause  to  believe  the  said  C.  D.  to  be 
guilty  thereof,  and  the  said  justice  being  satisfied  by  due  proof,  (or  "  by 
admissions  of  the  said  G.-H.,")  that  there  is  good  reason  to  believe  that 
the  said  G.  H.  would  not  fulfil  the  condition  of  a  recognizance,  unless 
sureties  be  required,  and  the  said  G.  H.,  being  required  by  the  said 
justice  to  enter  into  a  recognizance,  with  one  good  and  sufficient  surety, 
in  the  sum  of  -  dollars,  for  his  personal  appearance  at  the  next 
term  of  the  circuit  court,  to  be  held  in  and  for  the  said  county  of  -  , 
on  the  first  day  thereof,  to  give  evidence  on  behalf  the  said  people 
against  the  said  C.  D.,  for  the  offense  aforesaid,  with  which  requisition 
the  said  G.  H.  has  failed  to  comply  ;  and  you,  the  said  keeper,  are 
hereby  required  to  receive  the  said  G.  H.  into  your  custody,  in  the 
said  jail,  and  him  there  safely  keep,  until  he  shall  enter  into  such  recog- 
nizance, with  such  surety  as  aforesaid,  or  be  otherwise  discharged  by 
due  course  of  law. 

Witness  the  said  L.  M.,  at  -  ,  in  the  county  of  -  ,  the  - 
day  of  -  ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Form  of  Commitment  of  an  Accomplice  to  give  Evidence. 
STATE  OF  ILLINOIS, 


COUNTY,         s' 


The  People  of  the  State  of  Illinois  to  any  Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County  : 
We  command  you,  the  said  constable,  forthwith  to  convey  and  deliver 
into  the  custody  of  the  said  keeper,  the  body  of  G.  H.,  charged  before 
L.  M.,  one  of  the  justices  of  the  peace  of  the  said  county,  on  his  own 
confession,  in  being  an  accomplice  with  C.  D.,  in  [feloniously  stealing, 
taking,  and  driving  away  one  yoke  of  oxen,  of  the  value  of  forty  dol- 
lars, the  property  of  A.  B.,]  he,  the  said  G.  H.,  being  by  the  said 
justice  admitted  as  a  witness  against  the  said  C.  D.,  on  the  part  and 
behalf  of  the  people,  and  on  being  required  so  to  do,  has  not  offered 
security  for  his  appearance  at  the  next  term  of  the  circuit  court,  to  be 
held  in  and  for  the  said  county  of  -  ,  on  the  first  clay  thereof;  and 
you,  the  said  keeper,  are  hereby  required  to  receive  the  said  G.  H.  into 
your  custody,  in  the  said  jail,  and  him  there  safely  keep  for  the  want  of 
sureties,  until  he  shall  be  discharged  by  due  course  of  law. 


190  BAIL  AFTER  COMMITMENT.  [PART  2, 

"Witness  the  said  L.  M. ,  at ,  in  the  county  of ,  the 

day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

5.   Of  Bail  after  Commitment. 

When  any  person  shall  be  committed  to  jail  on  a  criminal  charge, 
for  want  of  good  and  sufficient  bail,  except  for  treason,  murder,  or 
other  offense  punishable  with  death,  or  for  not  entering  into  recogniz- 
ance to  appear  and  testify,  any  judge  or  any  two  justices  of  the  peace 
may  take  such  bail  or  recognizance  in  vacation,  and  may  discharge 
such  prisoner  from  his  or  her  imprisonment.1 

Form  of  Recognizance  of  a  Prisoner  after  Commitment. 

STATE  OF  ILLINOIS,  ") 
COUNTY,     f  SJ 

Be  it  remembered,  that  on  the day  of ,  185-,  C.  D. 

of ,  in  the  county  aforesaid,  and  E.  F.  and  G.  H.  of  the  same 

place,  personally  came  before  L.  M.  and  J.  K.,  two  of  the  justices  of 
the  peace  of  said  county,  and  severally  and  respectively  acknowledge 
themselves  to  owe  to  the  people  of  the  State  of  Illinois,  that  is  to  say, 

the  said  C.  D.  the  sum  of dollars,  and  the  said  E.  F.  and  G. 

H.  each,  the  sum  of dollars,  separately,  to  be  made  and  levied  of 

their  respective  goods  and  chattels,  lands  and  tenements,  to  the  use  of 
the  said  people,  if  default  shall  be  made  in  the  condition  following : 

The  condition  of  this  recognizance  is  such,  that  if  the  said  C.  D., 
who  has  been  committed  to  the  common  jail  of  the  said  county,  for 
want  of  sureties,  shall  personally  be  and  appear  at  the  next  term  of 

the  circuit  court,  to  be  held  in  and  for  the  said  county  of ,  on 

the  first  day  thereof,  to  answer  to  an  indictment  to  be  preferred  against 
him  for  (here  state  the  offence  briefly,*)  and  to  do  and  receive  what 
shall,  by  the  court,  be  then  and  there  enjoined  upon  him,  and  shall  not 
depart  the  court  without  leave,  then  this  recognizance  to  be  void, 
otherwise  to  remain  in  full  force. 

Taken,  subscribed  and  acknowledged  1  C.  D. 

the  day  and  year  first  above  written,    |  E.  F. 

before  L.  M.,  J.  P.        j  G.  H. 

J.  K.,  J.  P. 

(1)  Rev.  Stat.  191,  Sec.  206. 


ClIAP.  3.]  BAIL  AFTER  COMMITMENT.  191 

Liberate  or    Warrant  to  discharge  a  Prisoner,  upon  his  finding 
Sureties  after  Commitment. 

STATE  OP  ILLINOIS,  \ 

COUNTY,    )  ss' 

The  People  of  the   State  of  Illinois,  to  the  Keeper  of  the  Common 

Jail  of  the  said  County : 

These  are  to  require  you  to  discharge  from  imprisonment  C.  D.,  now 
in  your  custody,  on  the  warrant  of  commitment  under  the  hand  of  E. 

F. ,  one  of  the  justices  of  the  peace  of  the  said  county,  dated  the  * 

day  of ,  185-,  for  [having  feloniously  stolen,  taken  and  carried 

away  one  gold  watch,  the  property  of  A.  13.,]  if  detained  for  no  other 
cause,  he  having  entered  into  a  recognizance  before  L.  M.  and  J.  K., 
two  of  the  justices  of  the  peace  of  the  said  county.  Witness  the  said 

L.  M.  and  J.  K.,  at ,  in  the  said  county,  the day  of 

,  185-.  L.  M.,  J.  P. 

J.  K.,  J.  P. 


Another  form  for  the  above. 


STATE  or  ILLINOIS, 
COUNTY 


:s,) 
'  }-  ss. 


The  People  of  the  State  of  Illinois  to  the  Keeper  of  the  Common 

Jail  of  the  said  County : 

Discharge  from  imprisonment  C.  D.,  if  detained  in  your  custody  for 
no  other  cause  than  what  is  mentioned  in  the  warrant  for  his  commit- 
ment under  the  hand  of  E.  F.,  justice,  (or  "under  the  hands  of  0.  P. 
and  R.  S.,  two  of  the  justices  ")  of  the  peace  of  the  said  county,  dated 

the day  of ,  185-.     Witness  the  said  L.  M.,  and  J.  K., 

two  of  the  justices  of  the  peace  of  the  said  county,  the  d  ay  of 

,  185-.  L.  M.,  /.  P. 

J.  K.,  /.  P. 

Form  of  Recognizance  of  a  Witness  after  Commitment. 

STATE  OF  ILLINOIS,  ") 
COUNTY,      j 

Be  it  remembered,  that  on  the day  of ,  185-,  E.  F., 

of ,  in  the  county  aforesaid,  comes  before  L.  M.  and  J.  K., 

two  of  the  justices  of  the  peace  of  the  said  county,  and  acknowledges 

himself  to  owe  to  the  people  of  the  State  of  Illinois,  the  sum  of 

dollars,  to  be  made  and  levied  of  his  goods  and  chattels,  lands  and 
tenements,  to  the  use  of  the  said  people,  if  default  shall  be  made  in 
the  condition  following : 


192  BAIL   AFTER   COMMITMENT.  [PART   2, 

Whereas,  on  the day  of ,  185-,  C.  D.  was  brought 

before  L.  M.,  one  of  the  justices  of  the  peace  of  the  said  county, 
charged  on  the  oath  of  A.  B.  with  [having  feloniously  stolen,  taken 
and  led  away,  one  sorrel  horse,  of  the  value  of  sixty  dollars,  the 
property  of  the  said  A.  B.,]  and  upon  the  examination  of  the  said  C. 
D.  before  the  said  justice  on  that  day,  the  said  E.  F.  was  produced 
and  sworn,  whose  evidence  the  said  justice  deemed  material  to  prove 
the  offense  so  charged,  and  required  him  to  enter  into  a  recognizance 
to  appear  at  the  next  term  of  the  circuit  court,  to  be  held  in  and  for 
the  said  county,  on  the  first  day  thereof,  and  not  depart  without  leave, 
which  he  refused  to  do,  and  was  therefore  committed  to  the  common 
jail  of  the  said  county.  Now,  therefore,  the  condition  of  this  recog- 
nizance is  such  that  if  the  above  bounden  E.  F.  shall  personally  be  and 
appear  at  the  next  term  of  the  circuit  court,  to  be  held  in  and  for  the 

said  county  of ,  on  the  first  day  thereof,  to  give  evidence  in 

behalf  of  the  people,  against  the  said  C.  D.,  touching  the  said  offense 
so  charged,  as  well  to  the  grand  jury  as  to  the  petit  jury,  and  do  not 
depart  the  court  without  leave,  then  this  recognizance  to  be  void,  oth- 
erwise to  remain  in  full  force. 

Taken,  subscribed  and  acknowledged,  "1 
the  day  and  year  first   above  written, 
before  L.  M.,  J.  P. 

J.  K.,  J.  P. 


CHAP.  4.]  STATEMENT    OF   OFFENSES.  193 


CHAPTER    IV. 

FORMS  OF  STATEMENTS  OF  OFFENSES  IN  WARRANTS. 

I.  OFFENSES  AGAINST  THE  PERSONS  OF  INDIVIDUALS. 
II.  CRIMES    AND    OFFENSES    AGAINST    HABITATIONS    AND    OTHER 
BUILDINGS. 

III.  CRIMES  AND  OFFENSES  RELATIVE  TO  PROPERTY. 

IV.  FORGERY  AND  COUNTERFEITING. 

V.  CRIMES  AND  OFFENSES  AGAINST  PUBLIC  JUSTICE. 
VI.  OFFENSES  AGAINST  THE  PUBLIC  PEACE  AND  TRANQUILITY. 
VII.  OFFENSES    AGAINST    THE    PUBLIC    MORALITY,    HEALTH,    AND 

POLICE. 
VIII.  OFFENSES    COMMITTED   BY    CHEATS,    SWINDLERS,   AND    OTHER 

FRAUDULENT  PERSONS. 
IX.  FRAUDULENT  AND  MALICIOUS  MISCHIEF. 

I.    OFFENSES   AGAINST   THE    PERSONS    OF    INDIVIDUALS. 

For  murder  committed  by  shooting  with  a  gun.    Grim.  Code,  Sec.  22. 

(Commence  as  before,  page  168  ;)   that,  on  the  day  of 

-,  instant,  (or  "  last,")  at ,  in  the  county  aforesaid,  C.  D. 


did  feloniously,  willfully,  and  of  his  malice  aforethought,  fire  a  gun, 
loaded  with  powder  and  ball,  at  G.  H.,  and  gave  to  him  one  mortal 
wound,  of  which  he  instantly  died.  (Conclude  as  before,  page  168.) 

For  murder,  by  stabbing.     Crim.  Code,  Sec.  22. 

(Commence  as  before,  page  168  ;)  that,  on  the  day  of 

-,  instant,  (or  "last,")  at ,  in  the  county  aforesaid,  C.  D. 


did  feloniously,  willfully,  and  of  his  malice  aforethought,  with  a  knife, 
12 


194  STATEMENT    OF    OFFEXSES.  [PART  2, 

stab  one  G.  H.,  and  give  him  several  mortal  wounds,  of  which  said 
mortal  wounds,  the  said  G.  H.  languished  a  short  time,  and  then  died. 
(Conclude  as  before,  page  168.) 


For  murder,  by  striking.     Grim.  Code,  Sec.  22. 

(Commence  as  before,  page  168 ;)  that,  on  the day  of , 

&c.,  at ,  in  the  county  aforesaid,  C.  D.  did  feloniously,  willfully, 

and  of  his  malice  aforethought,  with  an  iron  poker,  strike  one  G.  H., 
and  give  him  one  mortal  wound,  of  which  said  mortal  wound,  the  said 
G.  H.  languished  a  short  tune,  and  then  died.  (Conclude  as  before, 
page  168.) 


For  suspicion  of  murder.     Crim.  Code,  Sec.  22. 

(Commence  as  before,  page  168 ;)  that,  on  this  present  day,  at 
-,  in  the  county  aforesaid,  one  G.  H.  was  feloniously,  willfully, 


and  of  malice  aforethought,  killed  and  murdered,  and  that  he  the 
said  A.  B.,  hath  just  cause  to  suspect,  and  doth  suspect,  that  C.  D. 
did  commit  the  said  felony  and  murder.  (Conclude  as  before,  page 
168.) 

The  like  in  another  form. 

(Commence  as  before,  page  168  ;)  that,  on  the  day  of 

instant,  at  ,  in  the  county  aforesaid,  one  G.  H.  was 


found  dead,  and  that  he  the  said  A.  B.  hath  just  cause  to  suspect,  and 
doth  suspect  that  the  said  G.  H.  was  on  that  day,  feloniously,  willfully, 
and  of  malice  aforethought,  killed  and  murdered,  and  that  C.  D.  did 
commit  the  said  felony  and  murder.  (Conclude  as  before,  page 
168.) 

For  murder  by  poison. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  C.  D. 
did  feloniously,  wickedly,  and  of  his  malice  aforethought,  administer, 
(or  "  cause  and  procure  to  be  administered,")  unto  G.  H.  a  large 
quantity  of  deadly  poison,  called  arsenic,  with  intent  to  kill  and 
murder  the  said  G.  H.,  which  poison  was  actually  taken  by  the  said 
G.  H.,  by  means  whereof  the  said  G.  H.  became  sick,  and  greatly 
distempered  in  his  body,  of  which  sickness,  until  the  day  of 


CHAP.  4.]  STATEMENT    OF    OFFENSES.  195 

,  at  the  place  in  the  county  aforesaid,  he  did  languish,  and, 

languishing  did  live,  and  afterwards,  on  the  day  and  at  the  place 
aforesaid,  he  the  said  G.  H.,  of  the  poison  and  sickness  and  distemper 
occasioned  thereby,  died.  (Conclude  as  before,  page  168.) 

For  suspicion  of  murder  by  poison. 

(Commence  as  before,  page  168 ;)  that,  on,  &c.,  at,  &c.,  one 
G.  H.  died,  and  that  he,  the  said  A.  B.,  hath  just  cause  to  suspect, 

and  doth  suspect,  that,  on  the  said day  of ,  at , 

in  the  county  aforesaid,  C.  D.  did  feloniously,  willfully,  and  of  his 
malice  aforethought,  administer  to  the  said  G.  H.,  a  certain  deadly 
poison,  called  arsenic,  by  reason  whereof  the  said  Gr.  H.  languished  a 
short  time,  and  then  died.  (Conclude  as  before,  page  168.) 

Form  against  accessory  before  the  fact,  as  principal. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  L.  M., 
did  feloniously,  willfully,  and  of  his  malice  aforethought,  assault  one 
Gr.  H.,  and  feloniously,  willfully,  and  of  his  malice  aforethought,  with 
his  hands  and  feet,  did  strike,  beat,  kick,  and  give  to  him  the«said 
G.  H.,  several  mortal  wounds,  of  which  said  mortal  wounds,  the  said 
G.  H.  instantly  died:  and  that  C.  D.  was  present,  aiding,  abetting 
and  assisting  the  said  L.  M.  in  the  said  murder.  (Conclude  as  before, 
page  168.) 

For  suspicion  of  murder  against  accessory  before  the  fact. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  one 
G.  H.  was  murdered,  and  that  he  the  said  A.  B.,  hath  just  cause  to 
suspect,  and  doth  suspect,  that  L.  M.  did  commit  the  said  murder : 
and  that  C.  D.  was  then  and  there  present,  and  did  aid,  abet,  and 
assist  the  said  L.  M.  in  the  said  murder.  (Conclude  as  before,  page 
168.) 

Against  an  accessory  after  the  fact  of  murder. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  L.  M. 
did  feloniously,  willfully,  and  of  his  malice  aforethought,  make  an 
assault  upon  G.  H.,  and  the  said  L.  M.  with  both  hands,  about  the 
neck  and  throat  of  him  the  said  G.  H.,  then  and  there  feloniously, 


196  STATEMENT    OF    OFFENSES.  [PART  2, 

willfully,  and  of  his  malice  aforethought,  did  choke  and  strangle,  of 
which  said  choking  and  strangling,  he  the  said  G.  H.  instantly  died  : 
and  that  C.  D.  well  knowing  the  said  L.  M'.  to  have  done  and  com- 
mitted the  said  felony  and  murder,  afterwards,  on  the  day  of 

,  in  the  county  aforesaid,  did   conceal  the   said  felony   and 

murder  from  the  magistrates  of  said  county.  (Conclude  as  before, 
page  168.) 

Against  an  accessory  after  the  fact  of  murder,  second  form. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at  &c.,  L.  M. 
did  feloniously,  willfully,  and  of  his  malice  aforethought,  cast  and 
throw  a  stone  in  and  upon  G.  H.,  and  did  strike  and  wound  the  said 
G.  H.,  giving  the  said  G.  H.,  by  the  casting  and  thro  wing  of  the  stone, 
a  mortal  wound,  of  which  mortal  wound  the  said  G.  H.  instantly  died  : 
that  on,  &c.,  at,  &c.,  the  said  L.  M.  was  charged  with  the  said  felony 

and  murder,  before ,  one  of  the  justices  of  the  said  county,  and 

a  warrant  issued  for  the  arrest  of  the  said  L.  M. :  and  that  C.  D.  having 
full  knowledge  that  the  said  L.  M.  had  done  and  committed  the  said  felony 
and  murder,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  in  the  county  afore- 
said, him,  the  said  L.  M.,  feloniously  did  harbor  and  protect,  with  in- 
tent that  the  said  L.  M.  might  avoid  an  arrest.  (Conclude  as  before, 
page  168.) 

For  manslaughter.     Crim.  Code,  Sec.  25. 

(Commence  as  before,  page  168  ;)  that  on  this  present  day,  at , 

in  the  county  aforesaid,  C.  D.  did  feloniously,  and  willfully,  with  a 
certain  stick,  strike  one  G.  H.,  and  give  him  one  mortal  wound,  of 
which  mortal  wound  the  said  G.  H.  languished  a  short  time  and  then 
died.  (Conclude  as  before,  page  168.) 

For  suspicion  of  manslaughter. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  one  G.  H.  was  feloniously  and  willfully  killed,  and  that 
the  said  A.  B.  hath  just  cause  to  suspect,  and  doth  suspect,  that  C.  D. 
did  commit  the  said  felony.  (Conclude  as  before,  page  168.) 

For  a  mother  concealing  death  of  bastard  child.  Crim.  Code,  Sec.  41. 

(Commence  as  before,  page  168;)  that  C.  D.,  a  single  woman,  on 
the day  of ,  18 — ,  at ,  in  the  county  aforesaid,  being 


ClIAP.  4.]  STATEMENT   OF    OFFENSES.  197 

pregnant  with  a  male  child,  was  then  and  there  delivered  of  the  said 
child  alive,  which  said  male  child  then  and  there  instantly  died,  and 
which  said  male  child,  by  the  laws  of  this  State,  was  a  bastard  :  and 
that  the  said  C.  D.  did  then  and  there  endeavor  privatelyto  conceal 
the  death  of  said  child,  so  that  it  might  not  come  to  light  whether  it 
was  murdered  or  not,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided.  (Conclude  as  before,  page  168.) 

For  dueling.     Grim.  Code,  Sec.  43. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
willfully  and  maliciously  engage  in  and  fight  a  duel  with  one  L.  M., 
with  deadly  instruments,  the  probable  consequence  of  fighting  with  which 
might  be  the  death  of  either  of  them,  the  said  C.  D.  and  L.  M.,  in 
which  duel,  fought  as  aforesaid,  the  said  C.  D.  did  kill  the  said  L.  M.. 
contrary  to  the  form  of  the  statute  in  such  case  made  and  provided. 
(Conclude  as  before,  page  168.) 

Another  form  for  dueling. 

(Commence  as  before,  page  168;)  thaton,  &c.,  at,  &c.,  C.  D.  andL.  M. 
did,  by  agreement,  engage  in  and  fight  a  duel  with  each  other,  with  deadly 
weapons,  the  probable  consequence  of  fighting  with  which  might  have 
been  the  death  of  either  party,  in  which  duel,  fought  as  aforesaid,  the 
said  C.  D.  did  inflict  a  wound  in  and  upon  the  said  L.  M.,  whereof  the 

said  L.  M.  died  within  one  year  thereafter,  to  wit,  on  the day  of 

,  18 — ,  contrary  to  the  form  of  the  statute  in  such  case  made  and 

provided.     (Conclude  as  before,  page  168.) 

For  challenging  a  person  to  fight  a  duel.     Crini.  Code,  Sec.  44. 

(Commence  as  before,  page  168 ;)  that  C.  D.,  on  the day  of 

-,  18 — ,  in  the  county  aforesaid,  unlawfully  did  challenge  G.  H.  to 


fight  a  duel  with  and  against  him,  the  said  C.  D.,  with  deadly  weapons, 
the  probable  issue  of  which  might  result  in  the  death  of  either  of  said 
parties,  contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided. (Conclude  as  before,  page  168.) 

For  accepting  a  challenge  to  fight  a  duel.    Crim.  Code,  Sec.  44. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
accept  a  challenge  to  fight  a  duel  with  one  G.  H.,  and  did  then  and 


198  STATEMENT    OF    OFFENSES.  [PART   2, 

there  consent  to  fight  therein  with  him,  the  said  G.  H.,  with  deadly 
weapons,  the  probable  issue  of  which  might  result  in  the  death  of  either 
of  said  parties,  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided.  (Conclude  as  before,  page  168.) 

For  delivering  a  challenge.     Grim.  Code,  Sec.  45. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  did, 
willfully  and  knowingly,  deliver  a  written  challenge,  from  and  on  the 
part  and  by  the  desire  of  G.  H.,  to  L.  M.,  to  fight  a  duel  with  said 
L.  M.,  with  deadly  instruments,  the  probable  consequence  of  fighting 
with  which  might  be  the  death  of  either  party,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided.  (Conclude  as  before, 
page  168.) 

For  being  present  at  the  fighting  of  a  duel,  as  a  second.     Grim. 
Code,  Sec.  45. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  L.  M.  did, 
by  agreement,  fight  a  duel  with  G.  H.,  with  deadly  weapons,  the  pro- 
bable consequence  of  fighting  with  which  might  have  been  the  death  of 
either  of  the  said  parties :  and  that  C.  D.  was  present  at  the  fighting 
.of  the  said  duel,  as  the  second  of  the  said  L.  M.,  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided.  (Conclude  as  before, 
page  168.) 

For  an  attempt  to  murder  by  poisoning.     Grim.  Code,  Sec.  46. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D.,  in- 
tending to  cause  the  death  of  G.  H.,  did,  willfully  and  maliciously, 
administer  to  him,  the  said  G.  H.,  a  certain  poison,  called  arsenic, 
which  was  actually  taken  by  the  said  G.  H.,  but  whereof  death  did  not 
ensue.  (Conclude  as  before,  page  168.) 

For  administering  poison  to  procure  the  miscarriage  of  a  worn  an 
with  child.     Grim.  Code,  Sec.  46. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
administer  to  G.  H.,  a  woman  then  being  with  child,  a  large  quantity 
of  a  certain  noxious  and  destructive  substance,  called  savin,  with  intent 


CHAP.  4.]  STATEMENT    OF   OFFENSES.  199 

thereby  to  procure  the  miscarriage  and  premature  birth  of  the  said  child, 
with  which  the  said  G.  H.  was  then  and  there  pregnant,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided.  (Conclude  as 
before,  page  168.) 

For  mayhem.     Grim.  Code,  Sec.  47. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
unlawfully,  with  a  certain  ax,  strike  and  cut  the  right  hand  of  the  said 
A.  B.,  and  thereby  render  the  same  useless.  (Conclude  as  before,  page 
168. 

Another  form  for  mayhem. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D., 
voluntarily,  and  of  purpose,  with  a  certain  dirk-knife,  unlawfully  put 
out  the  left  eye  of  the  said  A.  B.  (Conclude  as  before,  page  168.) 

For  a  rape.     Crim.  Code,  Sec.  48. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.,  in 
and  upon  the  said  A.  B.,  violently  and  feloniously  did  make  an  assault, 
and  her,  the  said  A.  B.,  against  her  will,  then  and  there  forcibly  did 
ravish  and  carnally  know.  (Conclude  as  before,  page  168.) 

For  having  carnal  knowledge  of  a  female  child  under  ten  years  of 
age.     Crim.  Code,  Sec.  48. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D.,  a 
male  person,  above  the  age  of  fourteen  years,  in  and  upon  one  G.  H., 
a  female  child,  under  the  age  of  ten  years,  feloniously  did  make  an  as- 
sault, and  her,  the  said  G.  H.,  then  and  there,  wickedly,  unlaw- 
fully, and  feloniously  did  carnally  know.  (Conclude  as  before,  page 
168.) 

For  sodomy.     Crim.  Code,  Sec.  50. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D.,  in 
and  upon  one  G.  H.,  feloniously  did  make  an  assault,  and  then  and  there 
feloniously,  wickedly,  and  against  the  order  of  nature,  had  a  venereal 
affair  with  the  said  G.  H. :  and  then  and  there  feloniously,  wickedly, 


200  STATEMENT    OF    OFFENSES.  [PART  2, 

and  against  the  order  of  nature,  with  the  said  Gr.  H.,  did  commit  and 
perpetrate  the  detestable  and  abominable  crime  of  buggery.  (Conclude 
as  before,  page  168.) 

Another  form  for  sodomy. 

(Commence  as  before,  page  168;)  that  on,  &e.,  at,  &c.,  C.  D., 
with  a  certain  cow  then  and  there  being,  feloniously,  wickedly,  and 
against  the  order  of  nature,  had  a  venereal  affair,  and  then  and  there 
feloniously,  wickedly,  and  against  the  order  of  nature,  carnally  knew 
the  said  cow,  and  then  and  there  feloniously,  wickedly,  and  against  the 
order  of  nature,  with  the  said  cow,  did  commit  and  perpetrate  the  de- 
testable and  abominable  crime  of  buggery.  (Conclude  as  before,  page 
168.) 

For  an  assault  with  intent  to  commit  murder.     Grim.  Code,  Sec.  52. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  in 
and  upon  the  said  A.  B.,  did  unlawfully,  willfully,  and  feloniously 
make  an  assault  with  a  drawn  sword,  with  intent  him,  the  said  A.  B., 
feloniously,  willfully,  and  of  his  malice  aforethought,  to  kill  and  mur- 
der. (Conclude  as  before,  page  168.) 

For  an  assault  with  intent  to  commit  rape.     Crim.  Code,  Sec.  52. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.,  in 
and  upon  A.  B.,  unlawfully  did  make  an  assault,  with  intent  her,  the 
said  A.  B.,  against  her  will,  forcibly  to  ravish  and  carnally  know. 
(Conclude  as  before,  page  168.) 

For  an  assault  with  intent  to  commit  robbery.     Crim.  Code,  Sec.  52. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D.,  in 
and  upon  the  said  A.  B.,  did  feloniously  and  violently  make  an  assault, 
with  intent  the  moneys  of  the  said  A.  B.,  from  the  person  and  against 
the  will  of  the  said  A.  B.,  forcibly  to  steal,  and  take  and  cany  away. 
(Conclude  as  before,  page  168.) 

For  an  assault  with  a  deadly  weapon,  with  intent  to  inflict  a  bodily 
injury.     Crim.  Code,  Sec.  52. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D., 
with  an  abandoned  heart  and  without  provocation,  did  feloniously,  with 


ClIAP.  4.]  STATEMENT    OP    OFFENSES.  201 

a  deadly  weapon,  to  wit,  an  ax,  make  an  assault  on  the  said,  B.  A. 
with  an  intent  upon  the  person  of  the  said  A.  B.,  a  bodily  injury. 
(Conclude  as  before,  page  168.) 

For  false  imprisonment.     Crim.  Code,  Sec.  54. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  C.  D.  un- 
lawfully and  forcibly  assaulted  the  said  A.  B.,  and  him,  the  said  A.  B., 
without  sufficient  legal  authority,  and  against  his  will,  did  detain  for  a 
long  time,  to  wit,  for  the  space  of  three  days,  then  next  following. 
(Conclude  as  before,  page  168.) 

For  kidnapping.     Crim.  Code,  Sec.  56. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
feloniously  and  forcibly  steal  and  take  E.  F.,  and  carry  him  to  the  State 
of  Louisiana,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  without  having  established  a  claim  to  the  said  E.  F.,  accord- 
ing to  the  law  of  the  United  States.  (Conclude  as  before,  page  168.) 

Another  form  for  kidnapping. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
feloniously,  and  without  lawful  authority,  forcibly  arrest  E.  F.,  with  a 
design  to  take  him  out  of  this  State,  without  having  established  a  claim 
according  to  the  laws  of  the  United  States,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  (Conclude  as  before,  page 
168.) 

For  kidnapping,  free  negroes.     Crim.  Code,  Sec.  57. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  C.  D.,  by 
false  promises  and  misrepresentations,  did  persuade  E.  F.,  a  negro,  not 
being  a  slave,  to  go  to  the  State  of  Kentucky,  for  the  purpose  and  with 
the  intent  to  sell  such  negro  into  slavery,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  (Conclude  as  before,  page 
168.) 


202  STATEMENT    OF    OFFENSES.  [PART  2, 

II.    CRIMES  AND  OFFENCES  AGAINST   HABITATIONS  AND  OTHER  BUILDINGS. 

For  arson.     Grim.  Code,  Sec.  58. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
willfully  and  maliciously  set  fire  to  and  burn  the  dwelling  house  of  said 

A.  B.,  situated  in ,  in  the  county  aforesaid.     (Conclude  as  before, 

page  168.) 

Another  form  for  arson. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
willfully  and  maliciously  set  fire  to  and  burn  the  school  house,  situate 
in  township  number  thirty-three  north,  in  range  three  east  of  the  third 
principal  meridian,  in  the  county  aforesaid,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  (Conclude  as  before,  page 
168.) 

For  suspicion  of  arson. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  the  barn 
of  the  said  A.  B.,  situate  in  the  county  aforesaid,  was  willfully  and 
maliciously  set  fire  to,  and  that  he,  the  said  A.  B.,  has  just  cause  to 
suspect  and  does  suspect,  that  C.  D.  did,  willfully  and  maliciously,  set 
fire  to  and  burn  the  said  barn.  (Conclude  as  before,  page  168.) 

For  setting  jire  to  a  storehouse,  fyc.,  with  intent  to  burn  the  same. 
Grim.  Code,  Sec.  59. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  C.  D.  did 
willfully  and  maliciously  set  fire  to  the  storehouse  of  A.  B.,  situate  in 

,  in  the  county  aforesaid,  with  intent  to  burn  the  same,  but  which 

storehouse  was  not  thereby  burned  :  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided.  (Conclude  as  before,  page  168.) 

For  burglary  and  larceny. 

(Commence  as  before,  page  168 ;)  that  in  the  night  of  the 

day  of ,  instant,  C.  D.  did,  willfully  and  maliciously , and  forcibly 

break  and  enter  the  dwelling  house  of  A.  B.,  with  intent  the  goods  and 
chattels  of  the  said  A.  B.,  then  and  there  feloniously  and  burglariously 
to  steal,  take  and  carry  away :  and  in  the  said  dwelling  house,  one  silver 


ClIAP.  4.]  STATEMENT   OF    OFFENSES.  203 

watch  of  the  value  of  twenty-five  dollars,  of  the  goods  and  chattels  of 
the  said  A.  B.,  then  and  there  did  feloniously  and  burglariously  steal, 
take  and  carry  away.  (Conclude  as  before,  page  168.) 

For  suspicion  of  burglary  and  larceny. 

(Commence  as  before,  page  168  ;)  that  in  the  night  of  the 

day  of ,  instant,  the  warehouse  of  him,  the  said  A.  B.,  situate  in 

,  in  the  county  aforesaid,  was  willfully  and  maliciously  entered, 

without  force,  by  a  window  then  and  there  being  open,  with  intent  the 
goods  and  chattels  of  G.  H.,  then  and  there  being,  feloniously  and  bur- 
glariously to  steal,  take  and  carry  away:  and  one  box  of  dry  goods,  of 
the  value  of  one  hundred  and  fifty  dollars,  of  the  goods  and  chattels  of 
him,  the  said  G.  H.,  was  feloniously  and  burglariously  stolen,  taken 
and  carried  away  from  thence:  and  that  he,  the  said  A.  B.,  hath  just 
cause  to  suspect,  and  doth  suspect,  that  C.  D.  did  commit  the  said  fel- 
ony and  burglary.  (Conclude  as  before,  page  168.) 

For  burglary.     Grim.  Code,  Sec.  60. 

(Commence  as  before,  page  168  ;)  that,  in  the  night  of  the 

day  of ,  instant,  C.  D.  did  willfully,  maliciously,  and  forcibly 

break  and  enter  the  shop  of  the  said  A.  B.1,  situate  in  ,  in  the 

county  aforesaid,  with  intent  the  goods  and  chattels  of  him,  the  said 
A.  B.,  then  and  there  being,  feloniously  and  burglariously  to  steal, 
take  and  carry  away,  contrary  to  the  form  of  the  statute  in  such  case 
made  aiid  provided.  (Conclude  as  before,  page  168.) 

For  suspicion  of  burglary. 

(Commence  as  before,  page  168  ;)  that,  in  the  night  of  the 

day  of ,  instant,  the  mill  of  the  said  A.  B.,  situate  in , 

in  the  county  aforesaid,  was  willfully,  and  maliciously,  and  forcibly 
broken  and  entered,  with  intent  the  goods  and  chattels  of  G.  H.,  then 
and  there  being,  feloniously  and  burglariously,  to  steal,  take,  and  carry 
away,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided  :  and  that  the  said  A.  B.  hath  just  cause  to  suspect,  and  doth 
suspect,  that  C.  D.  did  commit  the  said  felony  and  burglary.  (Con- 
clude as  before,  page  168.) 


204  STATEMENT    OF    OFFENCES.  [PART  2, 

III.    CRIMES    AND    OFFENCES    RELATIVE    TO    PROPERTY. 

For  robbery.     Grim.  Code,  Sec.  61. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  in  and  upon  the  said  A.  B.,  did  feloniously 
make  an  assault,  and  him  the  said  A.  B.,  in  bodily  fear  and  danger 
of  his  life,  then  and  there  feloniously  did  put ;  and  one  gold  watch,  of 
the  value  of  seventy-five  dollars,  of  the  goods  and  chattels  of  him  the 
said  A.  B.,  from  the  person  and  against  the  will  of  the  said  A.  B., 
then  and  there  feloniously  and  violently  did  steal,  take,  and  carry 
away.  (Conclude  as  before,  page  168.) 

Another  form  for  robbery. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  in  and  upon  the  said  A.  B.,  feloniously  did 
make  an  assault,  and  one  leathern  purse,  with  ten  current  silver 
dollars  therein,  the  property  of  the  said  A.  B.,  from  his  person  and 
against  his  will,  by  force,  did  then  and  there  feloniously  and  violently 
steal,  take,  and  carry  away.  (Conclude  as  before,  page  168.) 

For  larceny.     Crim.  Code,  Sec.  62. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  did  feloniously  steal,  take,  and  carry  away, 
three  pairs  of  shoes  of  the  value  of  five  dollars,  of  the  goods  and  chat- 
tels of  the  said  A.  B.  (Conclude  as  before,  page  168.) 

For  suspicion  of  larceny. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  divers  goods  and  chattels  of  the  said  A.  B.,  to  wit : 
one  coat,  one  vest,  of  the  value  of  ten  dollars,  and  six  silver  spoons,  of 
the  value  of  thirty  dollars,  were  feloniously  stolen,  taken  and  carried 
away,  and  that  he  hath  just  cause  to  suspect,  and  doth  suspect,  that 
C.  D.  did  feloniously  steal,  take,  and  carry  away  the  same.  (Conclude 
as  before,  page  168.) 


ClIAP.  4.]  STATEMENT    OF    DEFENSES.  205 

For  suspicion  of  stealing  a  horse. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  a  sorrel  horse,  of  the  value  of  fifty  dollars,  the  pro- 
perty of  the  said  A.  B.,  was  feloniously  stolen,  taken,  and  led  away, 
(or  if  oxen,  cows,  sheep,  fyc.,  "  driven  away,")  and  that  the  said 
A.  B.  hath  just  cause  to  suspect,  and  doth  suspect,  that  C.  D.  did 
feloniously  steal,  take,  and  lead  away  the  same.  (Conclude  as  before, 
page  168.) 

For  suspicion  of  larceny  in  stealing  writings  relating  to  real  estate. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the  county 
aforesaid,  a  certain  written  (or  "  partly  written  and  partly  printed  ") 
paper,  to  wit :  a  deed,  being  evidence  of  the  title  of  the  said  A.  B., 
to  certain  real  estate,  known  and  described  as  follows  :  viz.,  (describe 
the  real  estate, )  in  which  real  estate  the  said  A.  B.  then  and  there 
had,  and  still  has,  a  present  interest,  was  feloniously  stolen,  taken,  and 
carried  away ;  and  the  said  A.  B.  has  just  cause  to  suspect,  and  doth 
suspect,  that  C.  D.  did  feloniously  steal,  take,  and  carry  away  the 
same.  (Conclude  as  before,  page  168.) 

For  suspicion  of  larceny  in  stealing  a  promissory  note. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  one  promissory  note  for  the  payment  of  fifty  dol- 
lars, made  by  E.  F.,  and  payable  to  the  said  A.  B.,  was  feloniously 
stolen,  taken,  and  carried  away ;  and  that  the  said  A.  B.  has  just 
cause  to  suspect,  and  does  suspect,  that  C.  D.  did  feloniously  steal, 
take,  and  carry  away  the  same.  (Conclude  as  before,  page  168.) 

For  picking  pockets  or  otherwise  privately  stealing  from  the  person. 
Grim.  Code,  Sec.  62. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  from  the  person  of  the  said  A.  B.,  one  pocket 
handkerchief,  of  the  value  of  one  dollar,  one  silver  watch,  of  the  value 
of  fifteen  dollars,  of  the  goods  and  chattels  of  the  said  A.  B.,  subtilely, 
privately,  craftily,  and  without  the  knowledge  of  the  said  A.  B.,  then 
and  there  feloniously  did  steal,  take,  and  carry  away.  (Conclude  as 
before,  page  168.) 


206  STATEMENT  OF  OFFEND KS.  [PART  2. 

For  larceny  in  stealing  from  a  house  in  the  daytime.     Grim. 
Code,  Sec.  62. 

(Commence  as  before,  page  168 ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  in  the  daytime,  divers  goods  and  chattels  of  the 
said  A.  B.,  of  the  value  of  twenty-five  dollars,  to  wit :  (describe  the 
property,}  in  the  house  of  the  said  A.  B.,  then  and  there  being,  were 
feloniously  stolen,  taken,  and  carried  away;  and  that  the  said  A.  B. 
has  just  cause  to  suspect,  and  does  suspect,  that  C.  D.  did  feloniously 
steal,  take,  and  carry  away  the  same.  (Conclude  as  before,  page 
168.) 

For  receiving  stolen  goods.     Crim.  Code,  Sec.  65. 

(Commence  as  before,  page  168 ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  for  his  own  gain,  did  feloniously  buy  of  one 
G.  H.,  one  piece  of  broadcloth,  of  the  value  of  fifty  dollars,  of  the 
goods  and  chattels  of  the  said  A.  B.,  by  the  said  G.  H.  then  lately 
before  feloniously  stolen,  he,  the  said  C.  D.,  well  knowing  the  said 
piece  of  broadcloth  to  have  been  feloniously  stolen.  (Conclude  as 
before,  page  168.) 

For  suspicion  of  receiving  stolen  goods. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  divers  goods  and  chattels  of  the  said  A.  B.,  of  the 
value  of  fifty  dollars,  that  is  to  say,  (describe  the  property,}  were 
feloniously  stolen  by  an  ill-disposed  person,  to  the  said  A.  B.  unknown, 
(or  "by  one  G.  H.")  and  that  he  the  said  A.  B.  has  just  cause  to 
suspect,  and  does  suspect,  that  C.  D.  at ,  in  the  county  afore- 
said, to  prevent  the  said  A.  B.  from  again  possessing  his  property,  has 
received  the  said  goods  and  chattels,  of  the  said  ill-disposed  person, 
(or  "  of  the  said  G.  H.")  he  the  said  C.  D.  well  knowing  the  goods  and 
chattels  to  have  been  feloniously  stolen.  (Conclude  as  before,  page 
168.) 

For  marking  or  branding  a  horse,  fyc.,  with  intent  to  steal  him. 
Crim.  Code,  Sec.  65. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  mark,  (or  "  brand,")  a  certain 


CHAP.  4.]  STATEMENT   OF   OFFENSES.  207 

bay  mare,  the  property  of  the  said  A.  B.,  \vith  intent  thereby  feloni- 
ously to  steal,  take,  and  lead  away  the  same,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided.  (Conclude  as  before, 
page  168.) 

For  altering  or  defacing  marks  or  brands.     Crim.  Code,  Sec.  65. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  the  mark  (or  "  brand  ")  of  one  cow,  the  property  of 
the  said  A.  B.,  was  feloniously  altered,  (or  "  defaced,")  with  intent 
thereby  the  said  cow  feloniously  to  steal,  take,  and  drive  away,  (or 
"  to  prevent  the  identification  of  the  said  cow  by  the  said  A.  B.,") 
and  that  the  said  A.  B.  has  just  cause  to  suspect,  and  does  suspect, 
that  C.  D.  did  feloniously  alter  (or  "  deface  ")  the  said  mark,  (or 
"  brand,")  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.  (Conclude  as  before,  page  168.) 

For  officers  embezzling  money,  fyc.     Crim.  Code,  Sec.  66. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  £c.,  in  the 
county  aforesaid,  C.  D.  was  treasurer  of  the  said  county,  and  was 
entrusted  with,  and  had  charge  and  custody  of,  certain  money  belong- 
ing to,  and  being  the  property  of  the  said  county,  that  is  to  say,  one 
thousand  dollars  of  the  current  coin  of  the  United  States,  and  then 
and  there  feloniously  did'  embezzle,  steal,  and  secrete  the  said  money, 
so  in  his  charge  and  custody  as  aforesaid,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  (Conclude  as  before,  page 
168.) 

F\tr  officers  failing  and  refusing  to  pay  over  money,  tyc.    Crim. 
Code,  Sec.  67. 

(Commence  as  before,  page  168;)  that,  on  the  day  o. 

-,  18 — ,  C.  D.  was  collector  of  the  county  of .entrusted 


by  law  to  collect  the  revenue  belonging  to  the  said  county,  and  there 
and  then,  had  collected  and  received  one  thousand  dollars,  current 
money  of  the  United  States,  for,  and  on  account  of  the  revenue  of 
the  said  county;  and  the  said  C.  D.,  not  regarding  his  duty  as  such 

collector,  but  afterward,  on   the  day  of  ,   18 — ,   at 

.  in  the  county  aforesaid,   demand   for  the  payment   of  the 


208  STATEMENT    OF    OFFENSES.  PART  2, 

said  money  having  been  duly  made  by  the  treasurer  of  the  said  county, 
fraudulently  and  unlawfully  failed  and  refused  to  pay  over  the  said 
money  to  the  said  treasurer,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.  (Conclude  as  before,  page  168.) 

For  fraudulently  and  maliciously  destroying  papers,  fyc.     Grim. 
Code,  Sec.  68. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  and  maliciously  burn  a  bond 
for  securing  the  payment  of  the  sum  of  one  hundred  dollars,  executed 
by  G.  H.  to  the  said  A.  B.,  the  property  of  said  A.  B.,  with  intent 
to  defraud,  prejudice,  and  injure  the  said  A.  B.,  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided.  (Conclude  as  before, 
page  168.) 

For  removing  landmarks.     Crirn.  Code,  Sec.  69. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  knowingly,  maliciously,  and  fraudulently 
cut,  fell,  and  remove  a  certain  tree,  being  a  boundary  tree  of  the  land 
of  the  said  A.  B.,  situate  in  the  said  county,  to  the  wrong  of  the  said 
A.  B.,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.  (Conclude  as  before,  page  168.) 

For  embezzlement  by  a  clerk,  servant,  fyc.     Grim.  Code,  Sec.  70. 

(Commence  as  before,  page  168  ;)  that  C.  D.  was  the  clerk  of  the 
said  A.  B.  on  the day  of ,  18 — ,  in  the  county  afore- 
said, and  that  the  said  A.  B.  did  then  and  there  entrust  to  the  said 
C.  D.,  (describe  the  property,)  the  goods  and  chattels  of  him  the  said 
A.  B.,  and  that  the  said  C.  D.  did  then  and  there  withdraw  himself 
from  the  said  A.  B.,  and  went  away  with  the  said  goods  and  chattels, 
with  intent  feloniously  to  steal,  take,  and  carry  away  the  same,  and  to 
defraud  the  said  A.  B.  thereof,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided.  (Conclude  as  before,  page  168.) 

Another  form  for  embezzlement  by  clerk,  servant,  Sfc. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  then  and  there  being  in  the  service  and 


ClIAP.  4.]  STATEMENT    OF    OFFENSES.  209 

employment  of  the  said  A.  B.,  and  being  so  employed,  the  said  A.  B. 
then  and  there  entrusted  and  delivered  to  him  one  hundred  pieces  of 
silver  coin  called  dollars,  and  the  said  C.  D,  afterwards,  and  whilst  he 
was  in  the  service  of  the  said  A.  B.,  on  the  day  and  year  and  in  the 
connty  aforesaid,  did  feloniously  embezzle  and  convert  the  said  money 
to  his  own  use,  with  intent  feloniously  to  steal,  take,  and  carry  away 
the  same,  contrary  to  the  trust  and  confidence  reposed  in  him  by  the 
said  A.  B. ;  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.  (Conclude  as  before,  page  168.) 


IV.    FORGERY   AND    COUNTERFEITING. 

For  forging  a  Will.     Crim  Code,  Sec.  73. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  and  falsely  forge  and  counter- 
feit a  certain  will,  purporting  to  be  the  last  will  and  testament  of 
Gr.  H.,  deceased,  with  intent  to  damage  and  defraud  the  said  A.  B. 
(Conclude  as  before,  page  168.) 

For  suspicion  of  forging  a  deed  of  lands.     Crim.  Code,  Sec.  73. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  a  certain  deed,  purporting  to  be  a  deed  executed  by 
the  said  A.  B.  to  the  said  C.  D.,  and  by  which  the  right  and  interest 
of  the  said  A.  B.  to  certain  lands  situate  in  the  said  county,  purport 
to 'be  transferred  and  conveyed  by  the  said  A.  B.  to  the  said  C.  D., 
has  been  feloniously  and  falsely  forged  and  counterfeited  ;  and  that  the 
said  A.  B.  has  just  cause  to  suspect,  and  does  suspect,  that  the  said 
C.  D.  did  feloniously  forge  and  counterfeit  the  said  deed,  with  intent 
to  damage  and  defraud  the  said  A.  B.  (Conclude  as  before,  page 
168.) 

For  forging  a  promissory  note.     Crim.  Code,  Sec.  73. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  and  falsely  make,  forge,  and 
counterfeit  a  certain  promissory  note,  purporting  to  be  the  promissory 

13 


210  STATEMENT   OF    OFFENSES.  [PART  2, 

note  of  the  said  A.  B.  to  the  said  C.  D.,  for  the  payment  of  the  sum 
of  fifty  dollars,  with  intent  to  damage  and  defraud  the  said  A.  B. 
(Conclude  as  before,  page  168.) 

For  suspicion  of  forging  a  promissory  note. 

(Commence  as  before,  page  168 ;)  that  a  certain  promissory  note 
purporting  to  be  a  promissory  note  from  the  said  A.  B.  to  C.  D., 

for  the  payment  of  the  sum  of  fifty  dollars,  has  lately  at  ,  in 

the  county  aforesaid,  been  feloniously  and  falsely  made,  (or  "altered,") 
forged  and  counterfeited ;  and  that  the  said  A.  B.  has  just  cause  to 
suspect,  and  does  suspect,  that  the  said  C.  D.  did  feloniously  commit 
the  said  forgery,  with  intent  to  damage  and  defraud  the  said  A.  B. 
(Conclude  as  before,  page  168.) 

For  suspicion  of  forging  a  receipt.     Crim.  Code,  Sec.  73. 

(Commence  as  before,  page  168  ;)  that  a  certain  receipt  purporting 
to  have  been  made  and  signed  by  the  said  A.  B.,  and  that  the  said 
A.  B.  had  received  from  C.  D.  the  sum  of  fifty  dollars,  has  lately  at 

,  in  the  county  aforesaid,  been  feloniously  and  falsely  made, 

(or  "  altered,")  forged,  and  counterfeited;  and  that  the  said  A.  B. 
has  just  and  reasonable  grounds  to  suspect,  and  does  suspect,  that  the 
said  C.  D.  did  feloniously  commit  the  said  forgery,  with  intent  to 
damage  and  defraud  the  said  A.  B.  (Conclude  as  before,  page  168.) 

For  suspicion  of  forging  bank  notes. 

(Commence  as  before,  page  168  ;)  that,  lately  at  ,  in  the 

county  aforesaid,  three  promissory  notes  purporting  to  have  been  made 
and  issued  by  the  president,  directors,  and  company  of  the  bank  of 
Auburn,  a  corporation  duly  authorized  for  that  purpose  by  the  laws 
of  the  State  of  New  York,  for  the  payment  of  five  dollars  each,  were 
feloniously  and  falsely  made,  (or  "altered,")  forged,  and  counterfeited  ; 
and  that  the  said  A.  B.  has  just  and  reasonable  grounds  to  suspect, 
and  does  suspect,  that  C.  D.  did  feloniously  and  falsely  make,  (or 
alter,")  forge  and  counterfeit  the  said  promissory  notes,  with  intent 
to  damage  and  defraud  the  said  president,  directors,  and  company  of 
the  bank  of  Auburn.  (Conclude  as  before,  page  168.) 


CHAP.  4.]  STATEMENT    OF   OFFENSES.  211 

For  uttering  a  forged  bank  note. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  utter,  publish,  and  pass  to  the 
said  A.  B.,  as  true  and  genuine,  a  certain  false,  forged,  and  counter- 
feited promissory  note,  purporting  to  have  been  issued  by  the  president, 
directors,  and  company  of  the  bank  of  Missouri,  a  corporation  duly 
authorized  for  that  purpose  by  the  laws  of  the  State  of  Missouri,  for 
the  payment  of  the  sum  of  twenty  dollars,  knowing  the  same  to  be 
false,  forged,  and  counterfeited,  with  intent  to  prejudice,  damage,  and 
defraud  the  said  A.  B.  (Conclude  as  before,  page  168.) 

For  uttering  an  altered  bank  note. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  utter,  publish,  and  pass  as  true 
and  genuine,  a  certain  false,  altered,  and  counterfeited  promissory  note, 
purporting  to  be  a  promissory  note  issued  by  the  State  bank  of 
Indiana,  a  corporation  duly  authorized  for  that  purpose  by  the  laws  of 
the  State  of  Indiana,  for  the  payment  of  the  sum  of  ten  dollars,  which 
had  been  altered  from  a  promissory  note  of  the  State  bank  of  Indiana, 
for  the  payment  of  the  sum  of  one  dollar,  to  make  the  sum  resemble  a 
note  for  the  payment  of  the  sum  of  ten  dollars,  he  the  said  C.  D. 
knowing  the  same  to  be  altered  and  counterfeited,  with  intent  to 
prejudice,  damage,  and  defraud  the  said  State  bank  of  Indiana.  (Con- 
clude as  before,  page  168.) 

For  uttering  a  forged  county  order. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  utter,  publish  and  pass,  as  true 
and  genuine,  a  certain  county  order,  purporting  to  be  drawn  by  M.  M., 

the  clerk  of  the  county  commissioners'  court  of  the  county  of , 

upon  the  treasurer  of  said  county,  and  payable  to  Gr.  H.,  with  intent 
to  damage  and  defraud  the  said  county  of .  (Conclude  as  be- 
fore, page  168.) 

For  counterfeiting  coin.     Crim.  Code,  Sec.  74. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  counterfeit  three  pieces  of  the 


212  STATEMENT   OF    OFFENSES.  [PART  2, 

silver  coin  current  in  this  State,  by  the  laws  and  usages  thereof,  called 

Spanish  milled  dollars.     (Conclude  as  before,  page  168.) 

• 

For  suspicion  of  counterfeiting  coin. 

(Commence  as  before,  page  168  ;)  that  on  the day  of , 

instant,  ten  counterfeit  pieces  of  gold  coin  of  the  kingdom  of  Great 
Britain,  current  in  this  State,  called  guineas,  were  found  concealed  in 
the  barn  of  C.  D.,  situate  in  the  county  aforesaid ;  and  that  he,  the 
said  A.  B.,  hath  just  cause  and  reasonable  grounds  to  suspect,  and  doth 
suspect,  that  the  said  C.  D.  did  feloniously  counterfeit  the  same. 
(Conclude  as  before,  page  168.) 

For  passing  or  giving  in  payment  counterfeit  coin.     Crim.  Code, 

Sec.  74. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  pass  or  give  in  payment  to  the 
said  A.  B.,  as  true  and  genuine,  one  counterfeit  piece  of  the  gold  coin 
of  the  United  States,  current  in  this  State,  called  an  eagle,  knowing 
the  same  to  be  counterfeit,  with  intent  to  defraud  the  said  A.  B. 
(Conclude  as  before,  page  168.) 

For  offering  to  pay  or  give  in  payment  counterfeit  coin. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c,,  in  the 
county  aforesaid,  C.  D.  did  offer  to  pass  or  give  in  payment,  as  true 
and  genuine,  to  the  said  A.  B.,  five  counterfeit  pieces  of  the  gold  coin 
of  the  United  States,  current  in  this  State,  called  half-eagles,  knowing 
the  same  to  be  counterfeit,  with  intent  to  defraud  the  said  A.  B.  (Con- 
clude as  before,  page  168.) 

For  having  in  possession  counterfeit  coin,  with  intent  to  utter.  Crim. 
Code,  Sec.  75. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  feloniously  had  in  his  possession  five  counter- 
feit pieces  of  the  silver  coin  current  in  this  State,  called  Mexican  dol- 
lars, knowing  the  same  to  be  counterfeit,  with  intent  to  defraud  the 

t 


CHAP.  4.]  STATEMENT   OF    OFFENSES.  213 

said  A.  B.,  by  uttering  or  passing  the  same  to  him,  as  true  and  genuine. 
(Conclude  as  before,  page  168.) 


For  having  in  possession  forged  lank  bills,  with  intent  to  pass  them. 
Crim.  Code,  Sec.  75. 

(Commence  as  before,  page  168 ;)  that  on  this  present  day,  at,  &c., 
in  the  county  aforesaid,  C.  D.  feloniously  had  in  his  possession,  certain 
forged  promissory  notes,  commonly  called  bank  bills,  purporting  to  have 
been  issued  by  the  president,  directors,  and  company  of  the  bank  of 

— ,  a  corporation  duly  authorized  for  that  purpose  by  the  laws  of 

the  State  of ,  for  the  payment  of  ten  dollars,  well  knowing  the 

same  to  be  forged,  with  intent  to  utter  or  pass  the  same  as  true  and 

genuine,  with  intent  to  defraud  the  said  bank  of .     (Conclude 

as  before,  page  168)  v 

For  having  in  possession  fictitious  notes,  with  intent  to  utter.     Crim. 
Code,  Sec.  77. 

(Commence  as  before,  page  168  ;)  that  on  this  present  day,  at , 

in  the  county  aforesaid,  C.  D.  feloniously  had  in  his  possession  certain 

fictitious  bills  or  notes,  purporting  to  be  bills  or  notes  of  the bank, 

of ,  in  the  state  of ,  for  the  payment  of  five  dollars,  each, 

when,  in  fact,  there  is  no  such  bank  in  existence,  he,  the  said  C.  D., 
knowing  the  said  bills  or  notes  to  be  fictitious,  with  intent  to  pass,  utter 
and  publish  the  same  as  true,  with  intent  to  defraud  the  said  A.  B. 
(Conclude  as  before,  page  168.) 


For  having  in  possession  apparatus  for  counterfeiting  coin.     Crim. 
Code,  Sec,  78. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  knowingly  had  in  his  possession  a  certain  tool 
and  instrument  designed  for,  and  made  use  of  in  counterfeiting  the  coin 
current  in  this  State,  called  a  die,  with  intent  to  use  and  employ  the 
same,  or  to  cause  and  permit  the  same  to  be  used  and  employed  in  coin- 
ing and  making  the  false  coin,  as  aforesaid.  (Conclude  as  before, 
page  168.) 


214  STATEMENT    OF    OFFENSES.  [PART  2, 


For  having  in  possession  apparatus  for  counterfeiting  bank  bills. 

(Commence  as  before,  page  168 ;)  that  on  this  present  day,  at , 

in  the  county  aforesaid,  C.  D.  knowingly  had  in  his  possession  a  certain 
plate,  engraven,  devised,  and  designed  for,  and  made  use  of  in  coun- 
terfeiting bills  or  notes,  in  the  similitude  of  the  bills  or  notes  which 

have  been  issued  by  the  bank  of  ,  the  same  being  a  bank  or 

banking  company,  established  by  law,  in  the  State  of ,  with 

intent  to  use  and  employ  the  same,  or  cause  and  permit  the  same  to  be 
used  and  employed  in  making  such  counterfeit  bills  or  notes  of  the  said 
bank  of .  (Conclude  as  before,  page  168.) 


V.    CRIMES    AND    OFFENSES   AGAINST    PUBLIC    JUSTICE. 

For  perjury.     Crim.  Code,  Sec.  82. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  a  certain  cause,  in  which  G.  H.  was  plaintiff  and  the 

said  A.  B.  defendant,  was  tried  before ,  a  justice  of  the  peace 

of  the  said  county  of ,  and  that,  upon  the  trial  of  the  said  cause, 

C.  D.  appeared  as  a  witness  for  and  on  behalf  of  said  G.  H.,  and  was 

then  and  there  duly  sworn  (or  "affirmed")  by  the  said ,  who  had 

full  power  and  authority  to  administer  the  oath,  (or  "  affirmation,")  that 
the  evidence  he  should  give  relating  to  the  matter  in  difference  between 
the  said  parties,  should  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth  ;  and  that,  upon  the  trial  of  said  cause,  it  became  a  material 
question,  whether  the  said  G.  H.  had  sold  to  the  said  A.  B.  ten  bushels 
of  wheat ;  and  that,  thereupon,  the  said  C.  D.  being  so  sworn,  as  afore- 
said, did  then  and  there,  to  wit,  on  the  trial  of  said  cause,  before  the 
said ,  justice,  as  aforesaid,  falsely,  willfully,  and  corruptly  de- 
pose, swear,  (or  "affirm,")  and  give  in  evidence,  amongst  other  things,  in 

substance  as  follows,  to  wit,  that  on   or  about  the day  of , 

18 — ,  the  said  G.  H.  did  sell  to  the  said  A.  B.  ten  bushels  of  wheat, 
whereas,  in  truth  and  in  fact,  the  said  G.  H.  did  not,  on  or  about  the 
day  of ,  18 — ,  or  at  any  other  time,  sell  to  the  said 


ClIAP.  4.]  STATEMENT   OF    OFFENSES.  215 

A.  B.  ten  bushels  of  wheat,  or  any  other  quantity  of  wheat.  (Conclude 
as  before,  page  168.) 

For  subornation  of  perjury. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,   at,   &c.,  in  the 
county  aforesaid,  a  certain  cause,  in  which  G.  H.  was  plaintiff,  and 

A.  B.  was  defendant,  was  depending  before ,  a  justice  of  the  peace 

of  the  said  county  of ,  and  whilst  the  same  was  depending,  to  wit, 

on  the day  of ,  in  the  year  aforesaid,  in  the  county  aforesaid, 

C.  D.,  wickedly  contriving  and  intending  to  prevent  the  due  course  of 
law  and  justice,  and  to  aggravate  the  said  A.  B.,  the  defendent  in  the 
said  cause,  and  to  subject  him  to  the  payment  of  a  large  sum  of  money 
and  heavy  costs,  did,  wickedly  and  corruptly,  subject,  suborn,  and  pro- 
cure one  E.  F.,  to  be  and  appear  as  a  witness  at  the  trial  of  the 
said  cause,  for  and  in  behalf  of  the  said  Gr.  H.,  the  plaintiff,  and  upon 
the  trial  of  the  said  cause,  falsely,  wickedly,  and  corruptly,  to  swear 

and  give  in  evidence  to  and  before  the  said ,  justice  of  the  peace, 

as  aforesaid,  certain  matters,  material  and  relevant  to  the  matters  in 
issue  in  said  cause,  in  substance  as  follows,  to  wit,  that  on  or  about  the 

day  of ,  18 — ,  the  said  G.  H.  sold  and  delivered  to  the  said 

A.  B.,  a  horse,  for  the  consideration  of  forty  dollars,  which  the  said 
A.  B.  promised  to  pay  in  one  month  from  the  time  of  delivery  of  the 
horse,  and  that  the  said  consideration  was  not  paid  at  the  time  of  de- 
livery ;  whereas,  in  truth  and  in  fact,  the  said  A.  B.  at  the  time  of  de- 
livery did  pay  to  the  said  G.  H.  the  sum  of  forty  dollars,  the  full  con- 
sideration for  the  said  horse,  and  did  not  promise  to  pay  the  same  in 
one  month  from  the  time  of  the  delivery  thereof :  and  afterwards,  to  wit, 

on  the day  of ,  18 — ,  before  the  said ,  justice  of  the 

peace,  as  aforesaid,  in  the  county  aforesaid,  the  said  cause  was  tried, 
and  upon  the  trial,  the  said  E.  F.,  in  consequence  and  by  means,  en- 
couragement, and  effect  of  the  said  wicked  and  corrupt  subornation  and 
procurement  of  the  said  C.  D.,  did  then  and  there  appear  as  a  witness 
for  and  on  behalf  of  the  said  G.  H.,  the  plaintiff,  and  was  then  and 

there  duly  sworn  before  the  said ,  then  being  a  justice  of  the  peace, 

as  aforesaid,  and  having  sufficient  and  competent  power  and  authority 
to  administer  an  oath,  that  the  evidence  which  he  should  give,  touching 
the  matters  in  question  between  the  said  parties,  should  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth ;  and  the  said  E.  F.,  being 
so  sworn,  as  aforesaid,  at  the  said  trial,  upon  his  oath  falsely,  willfully, 


216  STATEMENT    OF    OFFENSES.  [PART  2, 

and  corruptly  did  depose  and  swear,  among  other  things,  in  substance 

as  follows,  to  wit,  that  on  or  about  the day  of ,  18 — ,  the 

said  G.  H.  sold  and  delivered  to  the  said  A.  B.,  a  horse,  for  the  con- 
sideration of  forty  dollars,  which  the  said  A.  B.  promised  to  pay  in  one 
month  from  the  time  of  delivery  of  the  horse,  and  that  the  said  con- 
sideration was  not  paid  at  the  time  of  delivery ;  whereas,  in  truth  and 
in  fact,  the  said  A.  B.,  at  the  time  of  delivery,  did  pay  to  the  said  G.  H. 
the  sum  of  forty  dollars,  the  full  consideration  for  said  horse,  and  did 
not  promise  to  pay  the  same  in  one  month  from  the  time  of  the  delivery 
thereof;  and  whereas,  in  truth  and  in  fact,  the  said  C.  D.,  at  the  time 
he  so  solicited,  suborned  and  procured  the  said  E.  F.,  falsely,  wickedly 
and  corruptly  to  swear  as  aforesaid,  well  knew  that  the  said  A.  B.,  at 
the  time  of  the  delivery,  did  pay  to  the  said  G.  H.,  the  sum  of  forty 
dollars,  the  full  consideration  for  said  horse,  and  did  not  promise  to  pay 
the  same  in  one  month  from  the  time  of  the  delivery.  (Conclude  as 
before,  page  168.) 

For  acknowledging  a  deed  in  the  name  of  another.     Grim.  Code, 

Sec.  91. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously,  and  without  due  authority  so  to 
do,  personate  the  said  A.  B.,  and  did  then  and  there  feloniously  acknow- 
ledge, in  the  name  of  the  said  A.  B-,  before  P.  K,  a  justice  of  the 
peace  for  said  county,  a  certain  deed  of  land,  situate  in  the  said  county, 
from  the  said  A.  B.  to  one  G.  H.  (Conclude  as  before,  page  168.) 

For  resisting  an  officer  in  the  discharge  of  his  duty.     Crim.  Code, 

Sec.  92. 

(Commence  as  'before,  page  168 ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  knowingly  and  willfully  obstruct,  resist  and 
oppose  the  said  A.  B.,  who  was  then  and  there  a  constable  of  the  said 
county,  in  attempting  to  serve  an  execution  upon  the  goods  and  chattels 

of  G.  H.,  which  execution  was  issued  by ,  a  justice  of  the  peace 

of  the  said  county,  and  delivered  to  the  said  A.  B.,  constable,  as  afore- 
said, to  be  by  him  executed,  upon  a  judgment  rendered  by  the  said  jus- 
tice of  the  peace,  against  the  said  G.  H.,  in  favor  of  E.  F.  (Conclude 
as  before,  page  168.) 


ClIAP.  4.]  STATEMENT    OF    OFFENSES.  217 


Fot  rescuing  a  person  from  custody  on  civil  process.     Grim.  Code, 

Sec.  98. 

(Commence  as  before,  page  168 ;)  that  on,   &c.,  at,  &c.,  in  the 

county  aforesaid, ,  a  justice  of  the  peace  of  said  county,  issued  a 

capias  against  G.  H.,  and  delivered  the  same  to  A.  B.,  one  of  the  con- 
stables of  said  county,  wherein  he  was  commanded  to  bring  the  body 
of  the  said  G.  H.  forthwith  before  the  said  justice  of  the  peace,  unless 
special  bail  be  entered,  then  to  command  him  to  appear  before  the  said 
justice,  on  a  certain  day  therein  specified,  to  answer  the  complaint  of 
E.  K,  for  a  failure  to  pay  him  a  certain  demand,  not  exceeding  one 
hundred  dollars ;  that  afterwards,  on  the  same  day,  in  the  county  afore- 
said, the  said  A.  B.,  constable  as  aforesaid,  arrested  the  said  G.  H.,  on  . 
the  said  capias,  and  had  him  in  custody  ;  and  that  afterwards,  on  the 
day  and  year  last  aforesaid,  in  the  county  aforesaid,  C.  D.  out  of  the 
custody  of  the  said  A.  B-,  constable,  as  aforesaid,  did  unlawfully  and 
forcibly  rescue  the  said  G.  H.  (Conclude  as  before,  page  168.) 

For  a  rescue  after  conviction.     Crim.  Code,  Sec.  93. 

(Commence  as  before,  page  168 ;)  that  G.  H.,  at  the  last  March 

term  of  the  circuit  court,  held  in  and  for  the  county  of ,  was  tried 

upon  an  indictment  then  preferred  against  him  for  larceny,  to  wit,  for 
feloniously  stealing,  taking,  and  carrying  away  one  silver  watch,  the 
property  of  E.  F.,  and  found  guilty  of  the  matters  in  said  indictment 
charged  upon  him,  by  the  jury  empannelled  to  try  the  same,  and  who 
by  their  verdict  said,  the  said  G.  H.  should  be  confined  in  the  peni- 
tentiary for  the  term  of  two  years  ;  and  it  was  thereupon  adjudged  by 
the  said  circuit  court,  that  the  said  G.  H.,  for  the  said  offense,  should  be 
imprisoned  in  the  penitentiary,  at  Alton,  for  the  said  term  of  two  years  ; 

and  was,  thereupon,  on  the day  of ,  18 — ,  delivered  to , 

Esquire,  sheriff  of  the  said  county  of ,  in  execution  of  said  judg- 
ment; and  that,  afterwards,  to  wit,  on  the day  of ,  18 — , 

in  the  county  aforesaid,  and  whilst  the  said  G.  H.  was  in  the  custody  of 

the  said  sheriff,  for  the  cause  aforesaid,  C.  D.  in  and  upon  the  said , 

Esquire,  sheriff,  as  aforesaid,  did  make  an  assault,  and  him,  the  said 
G.  H.,  unlawfully  and  forcibly,  from  the  custody  of  the  said  sheriff  did 
rescue,  and  put  at  large,  to  go  whithersoever  he  would.  (Conclude  as 
before,  page  168.) 


218  STATEMENT    OF    OFFENSES.  PART  2, 

Another  form  for  rescue  after  conviction. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  G.  H.,  who  had  been  convicted  of  the  crime  of  bur- 
glary, and  sentenced  to  imprisonment  in  the  penitentiary,  in  Alton,  was 

in  the  custody  of ,  Esquire,  sheriff  of  said  county,  and  whilst  the 

said  G.  H.  was  in  custody,  as  aforesaid,  afterwards,  to  wit,  on  the 

day  of ,  18 — ,  in  the  county  aforesaid,  C.  D.,  out  of  the  custody 

of  the  said  sheriff,  unlawfully  and  forcibly  the  said  Gr.  H.  did  rescue 
and  put  at  large,  to  go  where  he  would.  (Conclude  as  before,  page 
168.) 

for  a  rescue  before  conviction.     Crim.  Code,  Sec.  94. 

(Commence  as  before,  page  168  ;)  that  Gr.  H.,  on  the day  of 

-,  18 — ,  had  been  arrested  by  A.  B.,  one  of  the  constables  of  the 


said  county,  and  was  then  in  the  legal  custody  of  the  said  A.  B.,  as 
such  constable,  in  the  county  aforesaid,  on  a  charge  for  an  assault  and 
battery,  committed  by  the  said  G.  H.  upon  E.  F. ;  and  C.  D.,  well 
knowing  the  said  G.  H.  so  to  be  arrested,  afterwards,  to  wit,  on  the  said 
day  of ,  18 — ,  in  the  county  aforesaid,  the  said  G.  H.,  un- 
lawfully and  forcibly  did  rescue  and  put  at  large.  (Conclude  as  before, 
page  168.) 

For  assisting  a  prisoner  confined  in  jail  to  escape.      Crim.  Code, 

Sec.  99. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  unlawfully  aid  and  assist  one  G.  H.,  who 
was  lawfully  committed  to  and  detained  in  the  common  jail  of  the  said 

county,  situate  in  the  town  of ,  for  an  offense  against  this  State, 

that  is  to  say,  for  feloniously  stealing,  taking,  and  carrying  away  a  cer- 
tain horse,  the  property  of  the  said  A.  B.,  to  make  his  escape  from  the 
said  jail,  although  the  said  G.  H.  did  not  actually  escape.  (Conclude 
as  before,  page  168.) 

For  conveying  a  disguise  to  a  person  in  jail  to  facilitate  his  escape. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  feloniously  convey  a  certain  disguise,  to  wit, 


ClIAP.  4.]  STATEMENT    OF    OFFENSES.  219 

a  woman's  apparel,  to  G.  H.,  who  was  lawfully  committed  to  and  de- 
tained in  the  common  jail  of  the  said  county,  in ,  for  a  certain 

felony  by  him  committed,  that  is  to  say,  for  feloniously  passing,  as  true 
and  genuine,  ten  counterfeit  pieces  of  the  silver  coin  of  the  United 
States,  current  in  this  State,  called  half  dollars,  knowing  the  same  to 
be  counterfeit,  with  intent  to  defraud  one  E.  F.  ;  with  intent  thereby 
to  facilitate  the  escape  of  the  said  G.  H.  (Conclude  as  before,  page 
168.) 


For  the  voluntary  escape  of  a  prisoner  before  conviction,  against  an 
officer.     Crim.  Code,  Sec.  101. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  being  keeper  of  the  common  jail  of  the  said 
county,  and  then  and  there  having  in  his  legal  custody,  in  said  jail,  one 
G.  H.,  on  a  charge  of  having  committed  a  felony,  to  wit,  for  feloniously 
stealing,  taking  and  carrying  away  ten  hats,  the  property  of  one  J.  F., 
did  voluntarily  suffer  and  permit  the  said  G.  H.  to  escape  and  go  at 
large,  whithersoever  he  would.  (Conclude  as  before,  page  168.) 


For  an  officer  refusing  to  arrest  a  person  charged  with  a  criminal 
o/ense.     Crim.  Code,  Sec.  102. 

(Commence  as  before,   page  168;)  that  on,  &c.,  at,  &c.,  in  the 

county  aforesaid,  G.  H.  was  charged  upon  oath  before ,  a  justice 

of  the  peace  of  said  county,  with  having  committed  a  criminal  offense, 
to  wit,  for  passing  four  counterfeit  bank  bills,  purporting  to  have  been 

issued  by ,  a  corporation  for  that  purpose  duly  authorized  by  the 

laws  of  the  State  of ,  for  the  payment  of  five  dollars  each,  know- 
ing the  same  to  have  been  counterfeited,  with  intent  to  defraud  one 

A.  B.,  for  which  offense  the  said ,  then  and  there  issued  a  warrant, 

directed  to  all  sheriffs,  coroners  and  constables  of  said  State,  requiring 

them  to  take  the  said  G.  H.,  and  bring  him  before  the  said ,  which 

said  warrant  was  afterwards,  to  wit,  on  the day  of ,  18 — , 

in  the  county  aforesaid,  delivered  to  C.  D.,  then  one  of  the  constables 

of  the  said  county  of ,  to  be  by  him  executed,  and  that  the  said 

C.  D.  then  and  there  willfully  refused  to  arrest  the  said  G.  H.     (Con- 
clude as  before,  page  168.) 


220  STATEMENT    OF    OFFENSES.  [P.A.RT  2, 

For  compounding  a  criminal  offense.     Grim.  Code,  Sec.  103. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  E.,  the  wife  of  G.  H.,  feloniously  stole,  took,  and 
carried  away  one  silver  spoon,  of  the  goods  and  chattels  of  C.  D. ; 
and  that  the  said  C.  D.  knowing  the  said  felony  to  have  been  com- 
mitted, afterwards,  to  wit,  on  the  day  of  —  — ,  18 — ,  in 

the  county  aforesaid,  contriving  and  intending  unlawfully  and  unjustly 
to  prevent  the  due  course  of  law  and  justice  in  this  behalf,  and  to  cause 
and  procure  the  said  E.,  for  the  felony  aforesaid,  to  escape  with  impu- 
nity, unlawfully,  and  for  the  sake  of  gain,  did  compound  the  said 
felony  with  the  said  G.  H.,  the  husband  of  the  said  E.,  and  did  then 
and  there  exact  and  receive  of  the  said  G.  H.,  ten  dollars,  as  a  reward 
for  compounding  said  felony,  and  desisting  from  all  further  prosecution 
against  the  said  E.  (Conclude  as  before,  page  168.) 


For  embracery,  by  persuading  a  juror  to  give  his  verdict  in  favor 
of  the  defendant.     Crim.  Code,  Sec.  106. 

(Commence  as  before,  page  168 ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  knowing  that  a  jury  of  the  said  county  of 

,  was  then  duly  returned  impanneled,  and  sworn  to  try  a  certain 

issue  joined  in  the  circuit  court  then  held  according  to  law,  at  • r, 

in  and  for  the  county  of aforesaid,  between  E.  F.  plaintiff,  and 

G.  H.  defendant,  in  a  plea  of  trespass  on  the  case  upon  promises,  and 
then  also  knowing  that  a  trial  was  to  be  had  upon  the  said  issue,  on 

the  "day  of ,  18 — ,  in  the  year  aforesaid,  before  said 

circuit  court  then  and  there  held  for  the  county  aforesaid,  the  said 
C.  D.,  devising  wickedly  and  unlawfully  to  hinder  the  due  and  lawful 
trial  of  the  said  issue,  by  the  jurors  aforesaid,  returned  impanneled, 

and  sworn  as  aforesaid,  to  try  the  said  issue  on  the  day  of 

,  in  the  year  aforesaid,  at  ,  in  the  county  aforesaid, 

unlawfully,  wickedly,  and  unjustly  on  behalf  of  the  said  G.  H.,  the 
defendant  in  said  cause,  did  solicit  and  persuade  one  S.  R.,  one  of  the 
jurors  of  the  said  jury  returned  impanneled,  and  sworn  according  to 
law  for  the  trial  of  said  issue,  to  appear,  and  attend  in  favor  of  the 
said  G.  H.,  the  said  defendant,  and  then  and  there  did  say  and  utter 
to  the  said  S.  R.,  one  of  the  jurors  as  aforesaid,  divers  words  and 
discourses,  by  way  of  commendation,  on  behalf  of  him  the  said  G.  H., 


ClIAP.  4.]  STATEMENT   OF    OFFENSES.  221 

the  said  defendant,  and  disparagement  of  the  said  E.  F.,  the  plaintiff, 
to  influence  the  said  S.  R.,  one  of  the  jurors  as  aforesaid,  to  give  a 
verdict  for  the  said  G.  H.,  the  defendant.  (Conclude  as  before,  page 
168.) 

For  common  Barratry.     Grim.  Code,  Sec.  107. 

(Commence  as  before,  page  168;)  that  C.  D.,  of  the  county  of 
on  the day  of ,  18 — ,  and  on  divers  other 


days  and  times,  as  well  before  as  afterwards,  was  and  yet  is  a  common 

barrator,  and  that  he  the  said  C.  D.,  on  the  said  day  of 

,  18 — ,  and  on  divers  other  days  and  times,  in  the  county 

aforesaid,  divers  quarrels,  strifes,  suits,  and  controversies,  among  the 
honest  arid  quiet  citizens  of  this  State,  then  and  there  did  wickedly  and 
willfully  stir  up  and  excite,  with  a  view  to  stir  up  strife  and  contention. 
(Conclude  as  before,  page  168.) 

For  maintenance.     Crim.  Code,  Sec.  108. 

(Commence  as  before,  page  168  ;)  that  C.  D.,  on,  &c.,  at,  &c., 
in  the  county  aforesaid,  did  officiously  intermeddle  in  a  certain  suit, 
that  in  no  wise  belonged  to,  or  concerned  the  said  C.  D.,  which  was 

then  depending  in  the  circuit  court  in  the  county  of  — ,  between 

E.  F.,  plaintiff,  and  G.  H.,  defendant,  in  a  plea  of  debt  by  maintaining 
and  assisting  the  said  E.  F.,  the  plaintiff,  with  money  to  prosecute  his 
said  suit,  with  a  view  to  promote  litigation.  (Conclude  as  before, 
page  168.) 

For  extortion,  against  a  justice  for  taking  greater  fees  than  are 
legally  due.     Crim.  Code,  Sec.  109. 

(Commence  as  before,  page  158;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  then  an  acting  justice  of  the  peace  in  and  for 
the  said  county,  in  a  certain  suit  then  lately  tried  and  determined 
before  the  said  C.  D.  as  such  justice,  wherein  A.  B.  was  plaintiff,  and 
G.  H.,  defendant,  and  wherein  judgment  was  rendered  against  the  said 
Gr.  H.,  C.  D.  did  by  color  of  his  said  office,  willfully  and  corruptly 
extort,  receive,  and  take  of  and  from  the  said  G.  H.,  the  defendant, 
the  sum  of  fifty  cents,  under  pretense  that  the  sum  was  due  to  him 
as  his  fee  for  issuing  the  summons  in  said  case  ;  whereas  in  truth  and 


222  STATEMENT    OF    OFFENSES.  [PART  2, 

in  fact,  the  sum  of  eighteen  cents  and  three  fourths  only,  was  legally 
due  from  the  said  G.  H.  to  the  said  C.  D.,  as  such  justice  of  the 
peace,  for  his  said  service  in  issuing  said  summons.  (Conclude  as 
before,  page  168.) 

For  extortion,  against  a  constable  for  exacting  money  as  a  fee 
not  legally  due. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  being  then  and  there  one  of  the  constables  of 
the  said  county,  did  take  and  arrest  A.  B.,  by  color  of  a  certain 
warrant  commonly  called  a  bench  warrant,  which  he,  the  said  C.  D., 
then  and  there  alleged  to  be  in  his  possession,  and  afterwards  and 
whilst  the  said  A.  B.  so  remained  in  his  custody,  the  said  C.  D.,  to 
wit,  on  the  day  and  in  the  county  aforesaid,  did  willfully,  corruptly, 
and  extortively,  and  by  color  of  his  said  office,  extort,  receive,  and 
take  of  and  from  the  said  A.  B.,  the  sum  of  three  dollars,  as,  and  for 
a  fee  due  to  him  the  said  C.  D.,  as  such  constable,  as  he  alleged  ; 
whereas  in  truth  and  in  fact  no  fee  was  due  to  the  said  C.  D.  from  the 
said  A.  B.,  in  that  behalf.  (Conclude  as  before,  page  168.) 

For  extortion,  against  a  constable  for  exacting  a  greater  fee  than 
is  legally  due. 

(Commence  as  before,  page  168  ;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  being  one  of  the  constables  of  the  said  county, 

had  in  his  possession  an  execution  issued  by ,  a  justice  of  the 

peace  in  and  for  the  said  county,  in  favor  of  E.  JF.  against  G.  H.,  by 
which  execution  the  said  C.  D.  as  constable  as  aforesaid,  was  com- 
manded to  make  of  the  goods  and  chattels  of  the  said  G.  H.,  the  sum 
of  twenty  dollars  debt,  and  two  dollars  costs ;  and  afterwards,  to  wit, 
on  the  day  and  in  the  county  aforesaid,  the  said  C.  D.  by  color  of  his 
said  office,  did  willfully,  corruptly,  and  extortively  demand,  take,  and 
receive  of,  and  from  the  said  G.  H.,  as  a  fee  for  his  services  in  collect- 
ing the  amount  due  on  the  said  execution,  the  sum  of  five  dollars ; 
whereas  in  truth  and  in  fact  the  sum  of  two  dollars  only,  was  legally 
due  from  the  said  G.  H.  to  the  said  C.  D.,  as  such  constable,  as  afore- 
said, in  that  behalf.  (Conclude  as  before,  page  168.) 


ClIAP.  4.]  STATEMENT    OF    OFFENSES.  223 

VI.  OFFENSES  AGAINST   THE    PUBLIC    PEACE  AND    TKANQUILITY. 

For  disturbing  the  public  peace.     Grim.  Code,  Sec.  112. 

(Commence  as  before,  page  168;)  that  C.D.  and  E.  F.,  (if  more 
than  two,  say,  "together  with  divers  other  persons,  to  the  said  A.  B. 

unknown,")  at ,  in  the  county  aforesaid,  at  a  late  and  unusual 

hour  of  the  night  of  the  day  of ,  18 — ,  unlawfully  and 

willfully  did  assemble  and  meet  together,  and  being  so  assembled  and 
met  together,  did  then  and  there  unlawfully  and  willfully,  by  loud  and 
unusual  noises,  disturb  the  peace  and  quiet  of  the  family  of  the  said 
A.  B.  (Concludeas  before,  page  168.) 

For  disturbing  the  peace,  and  not  dispersing  on  being  commanded. 
Grim.  Code,  Sec.  113. 

(Commence  as  before,  page  168 ;)  that  C.  D.  and  E.  F.  (if  more  than 
two,  say,  "  and  divers  other  persons  to  the  said  A.  B.  unknown,")  on  the 
day  of ,  18 — ,  at  ,  in  the  county  aforesaid,  did  unlaw- 
fully assemble  and  meet  together  for  the  purpose  of  disturbing  the  public 
peace  ;  and  that  afterwards,  to  wit,  on  the  same  day  and  at  the  place 

aforesaid, ,  one  of  the  justices  of  the  peace  of  the  said  county, 

desired  and  commanded  all  persons  then  and  there  assembled,  imme- 
diately to  disperse,  and  notwithstanding  the  said  desire  and  command 

of  the  said ,  justice  of  the  peace  as  aforesaid,  the  said  C.  D. 

and  E.  F.,  (and  said  divers  other  persons,)  did  then  and  there  unlaw- 
fully, riotously  and  tumultuously,  and  to  the  disturbance  of  the  public 
peace,  remain  and  continue  together  for  the  space  of  one  hour  after 

such  desire  and  command  made  by  the  said  ,  justice  of  the 

peace  as  aforesaid.     (Conclude  as  before,  page  168.) 

For  an  unlawful  assembly.     Crim.  Code,  Sec.  115. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  and  E.  F.  unlawfully  did  assemble  together, 
to  pull  down,  remove,  and  destroy  a  certain  dwelling  house,  in  the 
possession  of  the  said  A.  B.,  and  having  so  assembled  for  the  purpose 
aforesaid,  did  separate  without  doing  or  advancing  towards  it.  (Con- 
clude as  before,  page  168.) 


224  STATEMENT    OF    OFFENSES.  [PART  2, 

For  a  rout.     Grim.  Code,  Sec.  116. 

(Commence  as  before,  page  168;)  that,  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  and  E.  F.,  upon  a  common  cause  of  quarrel, 
unlawfully  and  riotously  did  assemble  together,  to  break,  pull  down, 
and  remove  the  fences  upon  the  land  then  and  there  in  the  peaceable 
possession  of  the  said  A.  B.,  and  then  and  there  unlawfully  and  riot- 
ously did  advance  to  break,  pull  down,  and  remove  said  fences.  (Con- 
clude as  before,  page  168.) 

For  a  riot.     Crim.  Code,  Sec.  117. 

(Commence  as  before,  page  168  ;)  that,  on  this  present  day,  at 
-,  in  the  county  aforesaid,  C.  D.  and  E.  F.  did  unlawfully  and 


riotously  assemble  together,  to  disturb  the  peace,  and  being  so  assembled 
together,  in  and  upon  the  said  A.  B.  with  force  and  violence  did  make 
an  assault,  and  him  the  said  A.  B.  then  and  there  did  beat,  wound, 
and  ill  treat.  (Conclude  as  before,  page  168.) 

Another  form  for  a  Riot. 

(Commence  as  before,  page  168 ;)  that  on,  &c.,  at,  &c.,  in  the  coun- 
ty aforesaid,  C.  D.  and  E.  F.  (if  more  than  two,  say,  "  together  with 
divers  other  persons  to  the  said  A.  B.  unknown,")  unlawfully  and  riot- 
ously did  assemble  together  to  disturb  the  peace,  and  being  so  as- 
sembled together,  a  certain  building  and  out  house,  in  the  possession 
and  lawful  occupation  of  the  said  A.  B.,  then  and  there,  with  force  and 
violence,  did  break,  pull  down,  remove  and  destroy.  (Conclude  as 
before,  page  168.) 

Another  form  for  a  Riot. 

(Commence  as  before,  page  168 ;)    that  on  the  day  of 

last,  at ,  in  the  county  aforesaid,  C.  D.  and  E.  F. 


did  unlawfully  and  riotously  assemble  together  to  disturb  the  peace,  and 
being  so  assembled  together,  the  dwelling  house  of  the  said  A.  B.,  there 
situate,  then  and  there,  with  force  and  violence,  did  break  and  enter, 
and  then  and  there  with  force  and  violence,  put,  cast,  and  throw  divers 
goods  and  chattels  of  the  said  A.  B.,  to  wit,  (liere  set  out  the  goods,} 
then  being  in  the  said  dwelling  house,  from  and  out  of  the  same.  (Con- 
clude as  before,  page  168.) 


ClIAP.  4.]  STATEMENT   OP   OFFENSES.  225 

VII.       OFFENSES  AGAINST  THE  PUBLIC  MORALITY,  HEALTH  AND  POLICE. 

For  bigamy,  against  the  husband.     Crim.  Code,  Sec.  121. 

(Commence  as  "before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  being  then  married,  and  then  the  husband  of 
E.  D.,  feloniously  did  marry  and  take  to  wife,  L.  M.,  the  said  E.  D., 
his  former  wife,  being  then  alive.  (Conclude  as  before,  page  168.) 

For  bigamy,  against  the  wife. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  E.  D.,  being  then  married,  and  then  the  wife  of  C. 
D.,  feloniously  did  marry  and  take  to  husband,  L.  M.,  the  said  C. 
D.,  her  former  husband,  being  then  alive.  (Conclude  as  before,  page 
168.) 

For  a  single  person  marrying  the  wife  of  another.     Crim.  Code, 

Sec.  122. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  being  then  unmarried,  feloniously  and  knowingly 
did  marry  and  take  to  wife,  L.  M.,  being  then  married,  and  then  the 
wife  of  Gr.  M.  (Conclude  as  before,  page  168.) 

For  incest.     Crim.  Code,  Sec.  125. 

(Commence  as  before,   page  168;)    that  on  the  day  of 

last,  at ,  in  the  county  aforesaid,  C.  D.  did  felonious- 
ly intermarry  with  Gr.  D.,  then  being  sister  of  the  said  C.  D.  (Conclude 
as  before,  page  168.) 

Against  a  father  cohabiting  with  his  daughter.      Crim.  Code, 
Sec.  126. 

(Commence  as  before,   page  168 ;)    that  on  the  day  of 

last,  at ,  in  the  county  aforesaid,  C.  D.  did  rudely  and 


licentiously  cohabit  with  Gr.  D.,  his  daughter.     (Conclude  as  before, 
page  168.) 

For  living  in  an  open  state  of  adultery.      Crim.  Code,  Sec.  123. 

(Commence  as  before,  page  168  ;)   that  C.  D.,  on  the day 

of instant,  and  for  a  long  time  previous  thereto,  to  wit,    for 

14 


226  STATEMENT    OF    OFFENSES.  [PART  2, 

three  months  previous  thereto,  at  ,  in  the  county  aforesaid,  did  wrong- 
fully, lewdly  and  lasciviously,  in  an  open  state  of  adultery,  live  with  G. 
H.,  the  wife  of  E.  H.,  who  was  during  all  that  time  alive.  (Conclude 
,as  before,  page  168.) 

For  living  in  an  open  state  of  fornication.     Grim.  Code,  Sec.  123. 

(Commence  as  before,   page  168 ;)    that  on  the  day  of 

instant,  and  for  a  long  space  of  time  previous  thereto,  to  wit,  for  the 


space  of  two  months  previous  thereto,  at ,  in  the  county  aforesaid,  C. 

D.  did  wrongfully,  lewdly  and  lasciviously,  in  an  open  state  of  fornication, 
live  with  a  certain  woman,  named  G.  H.  (Conclude  as  before,  page 
168.) 

For  keeping  a  disorderly  house.     Grim.  Code,  Sec.  127. 

(Commence  as  before,  page  168  ;)    that  on  the  day  of 

last,    and    from  thence    to    this    present    day,  at 


in  the  county  aforesaid,  C.  D.  did  keep  and  maintain,  and  still  keeps 
and  maintains,  a  certain  common  ill  governed  and  disorderly  house  for 
his  own  lucre  and  profit,  where  persons  assemble  by  Jiis  encourage- 
ment and  permission,  and  there  remain  gaming.  (Conclude  as  before, 
page  168.) 

For  open  kwdness.     Grim.  Code,*Sec.  127. 

(Commence  as  before,  page  168  ;)  that  C.  D.,  on  the day 

of instant,  at  ,  in  the  county  aforesaid,  was  guilty  of 

open  lewdness,  by  openly,  grossly,  lewdly  and  lasciviously,  lying  on  a 
bed  with  one  E.  F.,  a  single  woman,  for  the  space  of  four  hours. 
(Conclude  as  before,  page  168.) 

For  keeping  a  lewd  house.      Grim.  Code,  Sec.  127. 

(Commence  as  before,  page  168 ;)  that  on  the day  of , 

185-,   and  from  thence  until  the    present  time,  at  ,  in  the 

county  aforesaid,  C.  D.  unlawfully  did,  and  still  does,  keep  and  main- 
tain a  certain  common  lewd  house,  and  in  said  house  certain  evil  dis- 
posed persons,  as  well  as  women  of  dishonest  conversation,  did  cause 
and  procure  to  frequent  and  come  together,  and  in  the  said  house  un- 


CHAP.  4.]  STATEMENT    OF   OFFENSES.  227 

lawfully  did  permit  the  said  men  and  women,  as  well  in  the  night  as  in 
the  day,  to  remain  in  the  practice  of  fornication.  (Conclude  as  before, 
page  168.) 


For  keeping  an  open  tippling  house  on  the  Sabbath. 

(Commence  as  before,  page  168 ;)  that  C.  D.,  on  the day 

of instant,  it  being  the  first  day  of  the  week  commonly  called 

the  Sabbath,  at ,  in  the  county  aforesaid,  unlawfully  and  will- 
fully did  keep  open  a  certain  tippling  house,  and  for  his  own  lucre  and 
gain,  in  the  said  house  did  procure  and  permit  certain  evil  and  ill  dis- 
posed persons  to  remain  drinking  and  tippling.  (Conclude  as  before, 
page  168.) 

For  keeping  a  common  gaming  house.     Grim.  Code,  Sec.  129. 

(Commence  as  before,  page  168  ;)  that  C.  D.,  on  the day  of 

last,  and  on  divers  other  days  and  times,  as  well  before  as  after- 


wards, at ,  in  the  county  aforesaid,   a  certain  common  gaming 

house  there  situate,  for  his  gain  and  profit,  unlawfully  and  injuriously 
did  exercise,  keep,  have  and  maintain,  and  in  the  said  common  gaming 

house,  on  the  said day  of ,  and  on  the  said  other  days  and  times, 

there  unlawfully  and  injuriously  did  procure  and  permit  divers  persons  to 
frequent  and  come  together  to  play  for  money,  at  a  certain  unlawful 
game,  called  billiards.  (Conclude  as  before,  page  168.) 

For  obstructing  the  public  highway.     Crim.  Code,  Sec.  134. 

(Commence  as  before,  page  168  ;)    that  on  the day  of , 

185-,  and  on  divers  other  days  and  times,  as  well  .before  as  afterwards, 

at ,  in  the  county  aforesaid,  the  public  highway,  then  leading 

from ,  unto  the  town  of ,  C.  D.  did  obstruct  and  render  in- 
convenient (or  "  dangerous")  to  pass,  that  is  to  say,  divers  large  pieces 
of  timber,  then  and  there  put  and  placed,  and  caused  to  be  put  and 
placed,  and  the  same  obstruction,  from  the  said day  of afore- 
said, until  the  day  of  exhibiting  this  charge,  in  and  upon  the  said  pub- 
lic highway,  to  be  and  remain,  has  permitted,  and  still  does  permit. 
(Conclude  as  before,  page  168.) 


228  STATEMENT    OF    OFFENSES.  [PART  2, 

For  obstructing  a  common  street.     Grim.  Code,  Sec.  134. 

(Commence  as  before,  page  168  ;)  that  on  the day  of 

18  5-,   and  on  divers  other  days  and  times  as  well  before  as  afterwards, 

at  in   the  county  aforesaid,    the  common  street  in  the  town 

of ,  called  Washington  street,  C.  D.  did  obstruct  and  render 

inconvenient  to  pass,  that  is  to  say,  divers  cartloads  of  filth  and  rubbish 
then  and  there  did  put  and  place,  and  cause  to  be  put  and  placed,  to 
the  great  inconvenience  of  the  citizens  of  the  said  town  and  of  the 
said  State,  so  that  they  could  not  freely  pass  and  repass  along  the  said 

street,  and  from  the  said day  of  aforesaid,  until  the 

day  of  exhibiting  this  charge,  has  permitted,  and  still  does  permit,  the 
said  obstruction  to  be,  lie  and  remain.  (Conclude  as  before,  page  168.) 

For  setting  unwholesome  provisions.     Crim.  Code,  Sec.  135. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at  &c.,  in  the  coun- 
ty aforesaid,  C.  D.  did  knowingly  sell  to  the  said  A.  B.  a  quantity  of 
diseased  and  unwholesome  provisions  for  meat,  that  is  to  say,  one  hun- 
dred pounds  of  the  flesh  of  a  diseased  ox,  knowing  the  said  ox  to  have 
been  diseased,  and  without  making  it  known  to  the  said  A.  B.  (Con- 
clude as  before,  page  168.) 

Another  form  for  selling  unwholesome  provisions. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid^  C.  D.  did  knowingly  sell  to  the  said  A  B.  a  certain 
quantity  of  diseased  and  unwholesome  provisions  for  meat,  that  is  to 
say,  one  hundred  pounds  of  diseased  and  unwholesome  pork,  knowing 
the  same  to  be  diseased  and  unwholesome,  and  without  making  it 
known  to  the  said  A.  B.  (Conclude  as  before,  page  168.) 

For  defacing  notices.     Crim.  Code,  Sec.  137. 

(Commence   as  before,  page   168;)  that  on,   &c.,  at,  &c.,  in  the 
•  county  aforesaid,  A.  B.,  one  of  the  constables  of  the  said  county,  had 

in  his  hands  an  execution,  issued  by ,  a  justice  of  the  peace  of 

said  county,  upon  a  judgment  then  lately  entered  by  him  in  favor  of 
E.  F.  plaintiff,  against  G.  H.  defendant,  by  which  execution  the  said 
A.  B.,  constable  as  aforesaid,  was  commanded  to  make  of  the  goods 


ClIAP.  4.]  STATEMENT    OF    OFFENSES.  229 

and  chattels  of  the  said  G.  H.  the  sum  of  thirty  dollars  debt,  and  two 
dollars  costs,  and  for  the  purpose  of  making  the  same,  the  said  A.  B., 
constable  as  aforesaid,  by  virtue  of  said  execution,  afterwards,  to  wit, 
on  the day  of 18  5-,  levied  upon  the  goods  and  chat- 
tels of  the  said  G.  H.,  and  afterwards,  on  the  same  day  and  in  the 

county  aforesaid,  appointed  the day  of ,  at  —  o'clock 

in  the noon,  as  the  time  for  the  sale,  by  advertisement  thereof  in 

writing,  posted  up  at  three  of  the  most  public  places  in  the  said  county, 
one  of  which  advertisements  was  posted  on  the  outer  door  of  the  house 

of ,  innkeeper  in  said  county  ;  that  on  the day  of , 

1851,  G.  D.  did  intentionally  tear  down  and  destroy  the  said  adver- 
tisement so  posted  up,  before  the  expiration  of  the  time  for  which  by 
law  it  was  to  remain  so  posted  up.  (Conclude  as  before,  page  168.) 

For  having  tools  with  which  to  break  into  a  dwelling  house,  fyc. 
Grim.  Code,  Sec.  139. 

(Commence  as  before,  page  168 ;)  that  on  the  night  of  the 

day  of ,   185-,  near  the  store  occupied  by  A.  B.,  containing 

valuable  property,  situate  in  the  town  of ,  in  the  said  county, 

C.  D.  was  found,  having  upon  him  and  in  his  possession,  a  pick-lock, 
crow,  and  bit,  with  intent  then  and  there  feloniously  to  break  and 
enter  the  said  store.  (Conclude  as  before,  page  168.) 

For  having  weapons  with  intent  to  assault,  fyc.     Grim.  Code, 
Sec.  139. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  had  in  his  possession  and  upon  him  a  certain 
offensive  weapon,  to  wit,  a  pistol,  with  intent  to  assault  the  person  of 
the  said  A.  B.  (Conclude  as  before,  page  168.) 

For  disinterring  the  dead.     Grim.  Code,  Sec.  141. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.  did  unlawfully  and  indecently  open  the  grave 
where  the  body  of  G.  H.,  deceased,  had  there  lately  been  deposited, 
and  the  body  of  the  said  G.  H.,  deceased,  from  the  said  grave  did 
then  and  there  remove  for  the  purpose  of  dissection,  without  the  knowl- 
edge and  consent  of  the  near  relations  of  the  said  deceased.  (Conclude 
as  before,  page  168.) 


230  STATEMENT    OP    OFFENSES.  [?ag6  2, 

For  voting  more  than  once  at  an  election.     Grim.  Code,  Sec.  142. 

(Commence  as  before,  page  168  ;)  that  at  a  general  election  held  on 

the  first  Monday  of  August  last,  (it  being  the day  of  August,)  in 

and  for  the  county  of  ,  in  the  several  precincts  (or  "  town- 
ships") of  the  said  county,  for  the  purpose  of  electing  county  officers, 
C.  D.,  being  an  elector  in  said  county,  did  appear  at  the  place  of  hold- 
ing said  election  in precinct  (or  " township,")  and  did  then  and 

there  vote  for,  and  mention  by  name  E.  F.  as  the  person  whom  he  in- 
tended to  vote  for  to  fill  the  office  of  sheriff  of  said  county  to  be  filled 
at  said  election,  and  cause  his  name  and  vote  to  be  entered  by  the 
clerks  of  said  election  in  said  precinct  or  ("  township")  for  the  said 
E.  F.  for  sheriff  as  aforesaid ;  and  the  said  C.  D.  being  a  person  re- 
gardless of  the  rights  of  the  people,  and  of  the  freedom  and  purity  of 
elections  in  this  State,  afterwards,  on  the  said  first  Monday  last,  did 

appear  at  the  place  of  holding  said  election  in precinct  (or  "  — — 

township")  in  said  county,  and  did  then  and  there  again  vote  for,  and 
mention  by  name  the  said  E.  F.,  as  the  person  he  intended  to  vote  for 
to  fill  the  office  of  sheriff,  to  be  filled  at  said  election,  and  cause  his 
name  and  vote  to  be  entered  by  the  clerks  of  said  election  for  the  said 
E.  F.  for  the  office  of  sheriff  as  aforesaid,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  (Conclude  as  before,  page 
168.) 


VIII.       OFFENSES     COMMITTED     BY     CHEATS,     SWINDLERS,     AND    OTHER 
FRAUDULENT    PERSONS. 

For  fraudulently  conveying  property,    fyc.     Grim.  Code,  Sec.  151. 

(Commence  as  before,  page  168;)  that  on  the day  of , 

185-,   at ,  in  the  county  aforesaid,  C.  D.  being  the  owner  in 

fee  of  a  certain  tract  of  land  situate,  lying  and  being  in  the  said 
county,  bounded  and  described  as  follows,  to  wit,  (describe  the  land) 
being  then  and  there  indebted  to  the  said  A.  B.  in  a  large  sum  of 
money,  to  wit,  the  sum  of  one  hundred  dollars,  for  the  collection  of 
which  the  said  A.  B.  had  then  lately  commenced  a  suit  in  the  circuit 

court  of county  against  the  said  C.  D.,  he,  the  said  C.  D.,  did 

unlawfully  and  fraudulently  convey  the  said  land  to  Gr.  H.,  with  intent 
to  hinder,  delay  and  defeat  the  said  A.  B.  in  the  collection  of  his  said 
debt.  (Conclude  as  before,  page  168.) 


CHAP.  4.]  STATEMENT    OF    OFFENSES.  231 

For  swindling.     Grim.  Code,  Sec.  152. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  by  a  certain  false  representation,  to  wit,  that 
he  was  worth  the  sum  of  five  thousand  dollars  after  the  payment  of 
every  debt  he  owed,  thereby  obtained  a  credit  of  one  month  for  the 
price  of  divers  goods  and  chattels,  to  wit,  five  horses  of  the  value  of 
three  hundred  dollars,  then  and  there  sold  and  delivered  to  him  by  the 
said  A.  B.,  with  intent  then  and  there  to  defraud  the  said  A.  B.  of  the 
same ;  when  in  fact  the  said  C.  D.  then  and  there,  as  he  well  knew, 
was  entirely  insolvent  and  unable  to  pay  for  said  horses,  and  by  the 
said  false  representations,  and  obtaining  the  credit  aforesaid,  the  said 
C.  D.  did  defraud  the  said  A.  B.  of  the  said  goods  and  chattels. 
(Conclude  as  before,  page  168.) 

For  obtaining  goods,  $c.,  by  false  pretenses.     Crim.  Code,  Sec.  153. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  C.  D.,  knowingly  and  designedly,  by  a  certain  false 
pretense,  to  wit,  by  falsely  pretending  that  G.  H.  had  in-  his  hands  a 
large  sum  of  money,  belonging  to  him,  he,  the  said  C.  D.,  did  obtain 
from  the  said  A.  B.,  divers  goods  and  chattels,  to  wit,  ten  cows  and 
six  oxen,  by  giving  in  payment  for  the  same  his  order  upon  the  said 
G.  H.,  whereby  he  required  the  said  G.  H.  to  pay  to  the  said  A.  B. 
the  sum  of  one  hundred  and  fifty  dollars,  one  week  after  the  date  thereof, 
with  intent  thereby  to  cheat  and  defraud  the  said  A.  B. ;  when,  in  fact, 
the  said  G.  H.  had  no  money  in  his  hands  belonging  to  the  said  C.  D., 
and  did  not,  and  would  not  pay  the  said  order  when  it  became  due,  or 
at  any  other  time.  (Conclude  as  before,  page  168.) 

For  fraudulently  selling  land  a  second  time.     Crim.  Code,  Sec.  154. 

(Commence  as  before,  page  168  ;)  that  on,  &c.,  at,  &c.,  in  the  county 
aforesaid,  C.  D.  did  enter  into  an  agreement  in  writing  with  G.  H.,  to  sell 
and  convey  to  the  said  G.  H.,  for  the  consideration  of  five  hundred  dollars, 
to  be  paid  three  months  after  the  date  of  the  said  agreement,  all  that  certain 
piece  or  parcel  of  land,  situate  in  said  county,  and  bounded  as  follows,  to 

wit,  (here  describe  the  land);  and  that  afterwards,  to  wit,  on  the day 

of ,  18 — ,  and  while  the  said  agreement  was  in  force,  in  the  county 

aforesaid,  for  the  consideration  of  five  hundred  dollars,  he,  the  said 
C.  D.  did,  knowingly  and  fraudulently,  dispose  of  and  convey  the 


232  STATEMENT    OF    OFFENSES.  PART  2, 

same  land  to  the  said  A.  B.,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.  (Conclude  as  before,  page  168.) 

For  selling  by  false  weights,  Sfc.     Grim.  Code,  Sec.  155. 

(Commence  as  before,  page  168  ;)  that  on  the day  of , 

18 — ,  and  from  thence  until  the  time  of  making  this  charge,  C.  D. 
was  a  grocer,  engaged  in  buying  and  selling  divers  goods,  wares  and 
merchandise,  and  did  keep  in  his  shop  false  weights,  for  weighing  goods, 
wares  and  merchandise,  by  him  sold,  which  caused  them  to  appear  of 
greater  weight,  to  wit,  of  a  greater  weight  by  one  ounce  in  every  pound 
of  goods  weighed,  than  the  real  and  true  weight 'thereof ;  and  during 
that  time  did  then  and  there  knowingly  sell  to  divers  citizens  of  this 
State,  divers  goods,  wares  and  merchandise,  weighed  with  said  false 
weights.  (Conclude  as  before,  page  168.) 

For  destroying  a  bridge,  fyc.     Grim.  Code,  Sec.  156. 

(Commence  as  before,  page  168  ;)  that  on  the day  of , 

18 — ,  C.  D.  did,  willfully  and  maliciously,  and  for  mischief,  cut  down 

a  certain  common  bridge,  then  being  over  the river,  commonly 

called  the bridge,  lying  and  being  in  the  county  of ;  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 
(Conclude  as  before,  page  168.) 

Another  form  for  destroying  property. 

(Commence  as  before,  page  168;)  that  on,  &c.,  at,  &c.,  in  the 
county  aforesaid,  three  stacks  of  hay,  of  the  value  of  twenty  dollars, 
the  property  of  the  said  A.  B.,  willfully  and  maliciously,  and  for  mis- 
chief, did  set  fire  to,  burn  and  destroy ;  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided.  (Conclude  as  before,  page 
168.) 


IX.    FRAUDULENT   AND    MALICIOUS    MISCHIEF. 


For  suspicion  of  girdling  fruit  trees.     Grim.  Code,  Sec.  156. 

(Commence  as  before,  page  168  ;)  that  on  the day  of , 

18 — ,  a  large  number  of  fruit  trees,  to  wit,  twenty  apple  trees,  stand- 


ClIAP.  4.]  STATEMENT    OF    OFFENSES.  233 

ing  and  growing  upon  the  lands  of  the  said  A.  B.,  situate  at ,  in 

the  county  aforesaid,  were  for  mischief,  willfully  and  maliciously  girdled ; 
and  that  he,  the  said  A.  B.  has  just  and  reasonable  ground  to  suspect, 
and  does  suspect,  that  C.  D.  did,  willfully  and  maliciously,  and  for  mis- 
chief, girdle  the  same.  (Conclude  as  before,  page  168.) 

For  maliciously  killing  an  ox,  fyc.     Crim.  Code.  Sec.  156. 
(Commence  as  before,  page  168  ;)  that  on  the day  of , 


18 — ,  at ,  in  the  county  aforesaid,  C.  D.  did,  unlawfully,  willfully 

and  maliciously,  and  for  mischief,  kill  a  certain  ox,  belonging  to  the 
said  A.  B.  (Conclude  as  before,  page  168.) 

For  suspicion  of  maliciously  disfiguring  a  horse. 

(Commence  as  before,  page  168  ;)  that  on  the day  of , 

18 — ,  at ,  in  the  county  aforesaid,  a  certain  horse  of  him,  the 

said  A.  B.,  was  for  mischief,  wantonly  and  maliciously  disfigured,  that 
is  to  say,  the  ears,  mane  and  hairs  of  the  tail  of  the  said  horse,  were 
cut  off;  and  that  he,  the  said  A.  B.  has  just  and  reasonable  grounds 
to  suspect,  and  does  suspect,  that  C.  D.  did,  unlawfully,  wantonly  and 
maliciously,  disfigure  the  said  horse.  (Conclude  as  before,  page  168.) 

For  setting  on  fire  prairie,  fyc.     Crim.  Code,  Sec.  158. 

(Commence  as  before,  page   168 ;)  that  on  the day  of , 

18 — ,  C.  D.  did,  willfully  and  intentionally,  set  fire  to  the  prairie  in 

precinct,  (or  " township,")  in  the  county  of ,  in  an 

inhabited  part  of  this  State ;  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided.  (Conclude  as  before,  page  168.) 


234  OBSERVANCE  OF  THE  PEACE.  [PART  2, 


CHAPTER  V. 


OF  PROCEEDINGS  IN  RELATION  TO  THE  OBSERVANCE  AND 
SURETY  OF  THE  PEACE  AND  GOOD  BEHAVIOR. 

The  duty  of  a  justice  of  the  peace,  under  this  head,  consists  in  com- 
pelling persons  threatening  to  commit  certain  crimes,  to  give  sureties  to 
keep  the  peace,  or,  in  default  thereof,  committing  them  to  prison.1 

Surety  of  the  peace  consists  in  being  bound  with  one  or  more  sureties, 
in  a  recognizance  or  obligation  to  the  people,  entered  on  record,  and 
taken  in  some  court,  or  by  some  judicial  officer ;  whereby  the  parties 
acknowledge  themselves  to  be  indebted  to  the  people  in  the  sum  re- 
quired, with  a  condition  to  be  void  and  of  no  effect,  if  the  party  com- 
plained of  shall  appear  in  court  on  such  a  day,  and  not  depart  the  same 
without  leave,  and  in  the  mean  tune  to  keep  the  peace  towards  the  peo- 
ple of  the  State,  and  particularly  towards  the  person  requiring  such 
security.2 

It  is  provided  by  statute,8  as  we  have  already  seen,4  that  justices  of 
the  peace,  hi  their  respective  counties,  shall  jointly  and  severally  be 
conservators  of  the  peace,  within  their  respective  jurisdictions,  and  have 
power  to  cause  to  be  brought  before  them,  or  any  of  them,  all  persons 
who  shall  break  the  peace,  and  commit  them  to  jail,  or  admit  them  to 
bail,  as  the  case  may  require,  and  to  cause  to  come  before  them,  all 
persons  who  shall  threaten  to  break  the  peace,  or  shall  use  threats 
against  any  person  within  this  State,  concerning  his  or  her  body,  or 
threaten  to  injure  his  or  her  property,  or  the  property  of  any  person 
whatever ;  and  also  all  such  persons  as  are  not  of  good  fame ;  and  the 
said  justice  of  the  peace,  being  satisfied  by  the  oath  of  one  or  more 
witnesses,  of  his  or  her  bad  character,  or  that  he  or  she  has  used  threats,  as 

(1)  Barb.  Crim.  L.  509.  (2)  4  Bl.  Com.  253. 

(3)  Rev.  Stat.  190,  Sec.  201.  (4)  Ante,  p.  157. 


CHAP.  5.]  OBSERVANCE   OF    THE    PEACE.  235 

aforesaid,  must  cause  such  person  or  persons  to  give  good  security  for 
the  peace,  or  for  their  good  behavior  towards  all  the  people  of  this 
State,  and  particularly  towards  the  individual  threatened  ;  and  if  any 
person  against  whom  such  proceedings  are  had,  shall  fail  to  give  a  re- 
cognizance with  sufficient  security,  it  will  be  the  duty  of  the  justice  of 
the  peace,  before  whom  he  or  she  shall  be  brought,  to  commit  such  per- 
son or  persons  to  the  jail  of  the  proper  county,  until  such  security  be 
given,  or  until  the  next  term  of  the  circuit  court.  The  justice  must 
also  take  recognizance  for  the  appearance  of  all  witnesses  at  such  courts. 
All  recognizances  taken  in  pursuance  of  the  foregoing  provisions,  must, 
be  returnable  to  the  next  circuit  court,  to  be  holden  in  the  proper  county, 
where  all  such  recognizances  will  be  renewed  or  dismissed,  as  the  said 
circuit  court  may,  upon  examination  of  the  witnesses,  deem  to  be  just 
and  right. 


STATE  OF  ILLINOIS, 
COUNTY 


Form  of  Warrant  for  the  Peace. 

)is,  ) 

'  >•  ss. 


The  People,  of  the  State  of  Illinois  to  any  Constable  of  said  County: 

Whereas  A.  B.  of  ,  in  the   said   county,  hath  this  day 

personally  appeared  before  L.  M.,  Esquire,  one  of  the  justices  of  the 
peace,  in  and  for  the  said  county,  and  made  oath  that  he  is  afraid 
C.  D.  will  beat,  [wound,  maim,  or  kill]  him,  for  that  the  said  C.  D. 
hath  lately  assaulted  him  with  a  large  knife,  and  threatened  to  plunge 
it  through  his  heart,  and  to  kill  him  at  any  rate,  and  hath  demanded 
security  for  the  peace  against  the  said  C.  D.,  and  the  said  justice  of 
the  peace  being  satisfied  by  the  oath  of  the  said  A.  B.,  that  the  said 
C.  D.  has  used  threats  as  aforesaid,  and  that  there  is  just  cause  to 
fear  the  execution  thereof  by  him : 

We  therefore  command  you,  that  immediately  upon  the  receipt  hereof, 

you  bring  the  said  C.  D.  before  the  said  justice,  at  his  office  in , 

in  said  county,  to  give  good  and  sufficient  security,  as  well  for  his 
personal  appearance  at  the  next  term  of  the  circuit  court  to  be  held  in 
and  for  said  county,  on  the  first  day  thereof,  as  also  for  his  keeping 
the  peace  in  the  mean  time  towards  all  the  people  in  this  State,  and 
particularly  towards  the  said  A.  B. 

Witness  the  said  L.  M.,  Esquire,  at  ,  in  the  said  county, 

the day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 


236  OBSERVANCE  OF  THE  PEACE.  [PART  2, 

Form  of  Warrant  for  good  behavior. 


STATE  OF  ILLINOIS, 


COUNTY 


HS,  7 

,  I88- 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County: 

Whereas  A.  B.  hath  this  day  personally  appeared  before  L.  M., 

Esquire,  one  of  the  justices  of  the  peace  in  and  for  the  said  county, 

and  made  oath  that  he  is  afraid  that  C.  D.,  of ,  in  said  county, 

will  burn  his  house,  (or  "  kill  his  cattle,"  or  other  injury  threatened 
to  the  property,  according  to  the  facts,}  for  that  the  said  C.  D.  has 
lately  threatened  to  burn  his  house,  (or  "kill  his  cattle,  &c.")  and 
hath  demanded  security  for  the  good  behavior  against  the  said  C.  D.  ; 
and  the  said  justice  of  the  peace  being  satisfied  by  the  oath  of  the  said 
A.  B.,  that  the  said  C.  D.  has  used  threats,  as  aforesaid,  and  that 
there  is  just  cause  to  fear  the  execution  thereof  by  him  : 

We  therefore  command  you,  that  immediately  upon  receipt  hereof, 

you  bring  the  said  C.  D.  before  the  said  justice  in  ,  in  said 

county,  to  give  good  and  sufficient  security,  as  well  for  his  personal 
appearance,  at  the  next  term  of  the  circuit  court  to  be  held  ha  said 
county,  on  the  first  day  thereof,  as  also  for  his  being  of  good  behavior 
in  the  meantime,  towards  all  the  people  of  this  State,  and  particularly 
towards  the  said  C.  D. 

Witness  the  said  L.  M.,  Esquire,  at ,  in  the  said  county,  the 

day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Form  of  Warrant  for  peace  or  good  behavior,  on  oath  of  two  or 
more  witnesses. 

STATE  OF  ILLINOIS,  ) 
—  COUNTY,     j ss" 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 
Whereas  A.  B.,  hath  this  day  personally  appeared  before  L.  M., 
Esquire,  one  of  the  justices  of  the  peace  in  and  for  the  said  county, 
and  made  oath  that  he  is  afraid  that  the  said  C.  D.  will  beat  him, 
[wound,  maim,  kill,  or  do  him  some  bodily  hurt,]  for  that  the  said 
C.  D.  hath  lately  threatened  to  beat  him,  [wound,  maim,  kill,  or  do 
him  some  bodily  hurt,]  and  hath  demanded  surety  for  the  peace,  (or 
"for  the  good  behavior")  against  the  said  C.  D. ;  (or  "that  he  is 


ClIAP.   5.]  OBSERVANCE    OF    THE    PEACE.  237 

afraid  that  the  said  C.  D.  will  burn  his  house,  (or  "kill  his  cattle,")  for 
that  the  said  C.  D.  hath  lately  threatened  to  burn  his  house,  (or  "  kill 
his  cattle,")  and  hath  demanded  security  for  the  good  behavior  against 
the  said  C.  D.)  And  the  said  justice  of  the  peace  being  satisfied,  by 
the  oaths  of  the  said  A.  B.  and  of  G.  H.  and  I.  J.,  that  the  said  C.  D. 
has  used  threats  as  aforesaid,  and  that  there  is  just  cause  to  fear  the 
execution  thereof: 

We  therefore  command  you,  that  immediately  upon  the  receipt 
hereof,  you  bring  the  said  C.  D.  before  the  said  justice,  at  his  office  in 

the  town  of ,  in  the  said  county,  or  before  some  other  justice  of 

the  peace  of  the  said  county,  to  give  good  and  sufficient  security,  as  well 
for  his  personal  appearance  at  the  next  term  of  the  circuit  court,  to  be 
held  in  said  county,  on  the  first  day  thereof,  as  also,  for  his  keeping 
the  peace,  (or  "  for  his  being  of  good  behavior")  in  the  mean  time, 
towards  all  the  people  in  the  State,  and  particularly  towards  the  said 
A.  B. 

Witness  the  said  L.  M.,  Esquire,  at  ,  in  the  said  county, 

the day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 

Form  of  Warrant  for  good  behavior  against  a  person  not  of 
good  fame. 

STATE  OP  ILLINOIS,  ) 
COUNTY,    j  ss 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

Whereas  we  are  given  to  understand,  by  the  information  and  testi- 
mony of  A.  B.  and  G.  H.,  under  oath,  this  day  taken  before  L.  M., 
Esquire,  one  of  the  justices  of  the  peace  in  and  for  the  said  county, 

that  C.  D.  of ,  in  the  said  county,  is  not  of  good  fame,  but  an 

evil  doer,  (or  "  a  rioter,  barrator,  &c.,"  or  any  one  of  these  or  the  like 
causes, ~)  and  a  common  disturber  of  the  peace,  and  have  demanded 
that  the  said  C.  D.  be  required  to  give  security  for  his  good  behavior; 
and  the  said  justice  of  the  peace  being  satisfied  by  the  oath  of  the  said 
A.  B.  and  G.  H.  of  the  bad  character  of  the  said  C.  D.,  and  that  he 
is  not  a  person  of  good  fame  : 

Therefore,  we  command  you,  that  immediately  upon  receipt  hereof, 


238  .OBSERVANCE    OF    THE    PEACE.  [PART  2, 

you  bring  the  said  C.  D.  before  the  said  justice,  at  his  office  in  the 

town  of ,  in  the  said  county,  to  give  good  and  sufficient  security, 

as  well  for  his  personal  appearance  at  the  next  circuit  court  to  be  held 
in  and  for  the  said  county,  on  the  first  day  thereof,  as  also,  for  his 
being  in  good  behavior  in  the  mean  time,  towards  all  the  people  of  this 
State,  according  to  the  form  of  the  statute  in  such  case  made  and 
provided. 

Witness  the  said  L.  M.,  Esquire,  at  ,  in  the  said  county, 

the day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 


Form  of  Recognizance  for  the  peace  or  good  behavior. 

STATE  OP  ILLINOIS,  ") 
COUNTY,      f  ss 

Be  it  remembered  that  on  this  day  of  ,  18 — -,  G.  D. 

of ,  and  in  the  said  county,  and  E.  F.  and  I.  J.  of ,  in 

the  said  county,  personally  come  before  me,  L.  M.,  Esquire,  one  of 
the  justices  of  the  peace  in  said  county,  and  severally  and  respectively 
acknowledge  themselves  to  owe  to  the  people  of  the  State  of  Illinois, 

to  wit,  the  said  C.  D.  the  sum  of dollars,  and  the  said  E.  F. 

the  sum  of dollars,  and  the  said  I.  J.  the  sum  of dol- 
lars, to  be  respectively  made  and  levied  of  their  several  goods  and 
chattels,  lands  and  tenements,  to  the  use  of  the  said  people,  if  default 
shall  be  made  in  the  condition  following  : 

The  condition  of  this  recognizance  is  such,  that  if  the  said  C.  D. 
shall  personally  be  and  appear  at  the  next  circuit  court  to  be  held  in 

and  for  the  said  county  of ,  on  the  first  day  thereof,  to  do  and 

receive  what  shall  then  and  there  be  enjoined  on  him  by  the  court,  and 
in  the  mean  time,  shall  keep  the  peace  (or  "  be  of  good  behavior  ") 
towards  all  the  people  of  this  State,  and  particularly  towards  A.  B., 
then  this  recognizance  to  be  void,  else  to  remain  in  full  force. 


Taken,  subscribed  and  acknowledged, 
the  day  and  year  first  above  written, 
before  me,  L.  M., 

Justice  of  the  Peace. 


C.  D. 
E.  F. 
I.  J. 


ClIAP.  5.]  OBSERVANCE   OF    TIIE   PEACE.  239 

Form  of  Mittimus  for  want  of  Sureties. 

STATE  OF  ILLINOIS, 
COUNTY, 

The  People  of  the  State  of  Illinois  to  any  Constable  of  the  said 

County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County: 

Whereas,  A.  B.  lately  appeared  beforfe  L.  M.,  Esquire,  one  of  the 

justices  of  the  peace  of  the  said  county,  and  made  oath  that  he  is  afraid 

that  C.  D.,  of ,  in  said  county,  will  [beat,  wound,  and  kill  him, 

for  that  the  said  C.  D.  hath  lately  assaulted  him  with  a  large  knife,  and 
threatened  to  plunge  it  through  his  heart  and  to  kill  him,  at  any  rate,] 
(or  "  burn  his  house,  for  that  the  said  C.  D.  hath  lately  threatened  to 
burn  his  house,  and  has  actually  attempted  to  set  fire  to  the  same,"  or, 
if  for  any  other  cause,  here  set  it  forth,')  and  the  said  justice  of  the 
peace,  being  satisfied  by  the  oath  of  the  said  A.  B.,  (if  there  are  two 
witnesses,  then  say,  "  oaths  of  the  said  A.  B.  and  E.  F.,")  Ijiat  the 
said  C.  D.  has  used  threats,  as  aforesaid,  has  caused  the  said  C.  D.  this 
day  to  be  brought  before  him,  and  required  him,  the  said  C.  D.,  to  give 
good  and  sufficient  security,  as  well  for  his  personal  appearance  at  the 
next  term  of  the  circuit  court,  to  be  held  in  and  for  the  said  county, 
on  the  first  day  thereof,  as,  also,  in  the  mean  time,  for  his  keeping  the 
peace  (or  "being  of  good  behavior")  towards  all  the  people  of  this 
State,  and  particularly  towards  the  said  A.  B.  ;  and,  whereas  he,  the 
said  C.  D.,  hath  refused,  and  doth  now  refuse,  before  the  said  justice  of 
the  peace,  to  find  such  security  : 

We,  therefore,  command  you,  the  said  constable,  forthwith  to  convey 
the  said  C.  D.  to  the  common  jail  of  the  said  county,  and  him  deliver 
to  the  keeper  thereof;  and  you,  the  said  keeper,  are  hereby  required  to 
receive  the  said  C.  D.  into  your  custody,  in  the  said  jail,  for  the  want  of 
sureties,  and  him  there  safely  keep  until  he  shall  be  discharged  by  due 
course  of  law. 

Witness  the  said  L.  M.,  Esquire,  at ,  in  the  said  county,  the 

day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 


240  OBSERVANCE    OF    THE    PEACE.  [PART  2. 

Form  of  Liberate,  to  discharge  one  committed  for  want  of  Sureties. 

STATE  OF  ILLINOIS,) 
COUNTY,      ) 

The  People  of  the  State  of  Illinois  to  the  Keeper  of  the  Common 
Jail  of  said  County  : 

Whereas,  C.  D.,  who  is  now  in  the  common  jail,  in  your  custody,  at 

the  suit  of  A.  B.,  of ,  in  said  county,  for  not  giving  good  and 

sufficient  security,  as  well  for  his  personal  appearance  at  the  next  term 
of  the  circuit  court,  held  in  the  said  county,  on  the  first  day  thereof,  as, 
also,  for  his  keeping  the  peace,  (or,  "being  of  good  behavior,")  in  the 
mean  tune,  towards  all  the  people  of  this  State,  and  particularly 
towards  the  said  A.  B.,  hath  given  before  L.  M.,  Esquire,  one  of  the 
justices  of  the  peace  in  the  said  county,  good  and  sufficient  securities 
that  he  will  personally  appear  at  the  nc'xt  circuit  court,  to  be  held  in 
and  for  the  said  county,  on  the  first  day  thereof,  and  will  well  and  truly 
keep  the  peace,  (or,  "  be  of  good  behavior,")  in  the  meantime,  towards 
all  the  people  of  this  State,  and  particularly  towards  the  said  A.  B.  : 

We,  therefore,  command  you,  that  if  the  said  C.  D.  do  remain  in  the 
said  jail,  for  the  said  cause,  and  none  other,  then  you  forbear  to  detain 
him  any  longer,  but  that  you  deliver  him  thence,  and  suffer  him  to  go 
at  large,  and  that  upon  the  penalty  that  will  fall  thereon. 

Given  under  the  hand  and  seal  of  the  said  justice,  at ,  in  the 

said  county,  the day  of ,  18 — . 

L.  M.,  J.  P.     [SEAL.] 


CHAP.  6.]  FUGITIVES  FROM  JUSTICE.  241 


CHAPTER  VI. 


OF  FUGITIVES  FROM  JUSTICE. 

Rev.  Stat.  262,  Sec.  4.  "  Whenever  any  person  within  this  State 
shall  be  charged,  upon  the  oath  or  affirmation  of  any  credible  witness, 
before  any  judge  or  justice  of  the  peace,  with  the  commission  of  any 
murder,  rape,  robbery,  burglary,  arson,  larceny,  forgery  or  counterfeit- 
ing, in  any  other  State  or  territory  of  the  United  States,  and  that  the 
said  person  hath  fled  from  justice,  it  shall  be  lawful  for  the  said  judge 
or  justice  to  issue  his  warrant  for  the  apprehension  of  said  person.  If, 
upon  examination,  it  shall  appear  to  the  satisfaction  of  such  judge  or 
justice,  that  the  said  person  is  guilty  of  the  offense  alleged  against  him, 
it  shall  be  the  duty  of  the  said  judge  or  justice  to  commit  him  to  the 
jail  of  the  county  ;  or,  if  the  offense  is  bailable,  according  to  the  laws 
of  this  State,  to  take  bail  for  his  appearance  at  the  next  circuit  court, 
to  be  holden  in  that  county.  It  shall  be  the  duty  of  the  said  judge  or 
justice  to  reduce  the  examination  of  the  prisoner,  and  those  who  bring 
him,  to  writing,  and  to  return  the  same  to  the  next  circuit  court  of  the 
county  where  such  examination  is  had,  as  in  other  cases  ;  and  shall  also 
send  a  copy  of  the  examination  and  proceedings  to  the  executive  of  this 
State,  so  soon  thereafter  as  may  be.  If,  in  the  opinion  of  the  execu- 
tive of  this  State,  the  examination  so  furnished,  contains  sufficient  evi- 
dence to  warrant  the  finding  of  an  indictment  against  such  person,  he 
shall  forthwith  notify  the  executive  of  the  State  or  territory,  where  the 
crime  is  alleged  to  have  been  committed,  of  the  proceedings  which  have 
been  had  against  such  person,  and  that  he  will  deliver  such  person  on 
demand,  without  requiring  a  copy  of  an  indictment  to  accompany  such 
demand  ;  when  such  demand  shall  be  made,  the  executive  of  this  State 
shall  forthwith  issue  his  warrant,  under  the  seal  of  the  State,  to  the 

15 


242  FUGITIVES    FROM   JUSTICE.  [PART  2, 

sheriff  of  the  county  where  the  said  person  is  committed  or  bailed,  com- 
manding him  to  surrender  him  to  such  messenger  as  shall  be  therein 
named,  to  be  conveyed  out  of  this  State.  If  the  said  person  shall  be 
out  on  bail,  it  shall  be  lawful  for  the  sheriff  to  arrest  him  forthwith, 
anywhere  within  the  State,  and  to  surrender  him  agreeably  to  said 
warrant." 

"  Sec.  7.  In  all  cases  where  complaint  shall  be  made,  as  aforesaid, 
against  any  fugitive  from  justice,  it  shall  be  the  duty  of  the  judge  or 
justice  to  take  good  and  sufficient  security  for  the  payment  of  all  costs 
which  may  accrue  from  the  arrest  and  detention  of  such  fugitive  ;  which 
security  shall  be  by  bond,  to  the  clerk  of  the  circuit  court,  conditioned 
for  the  payment  of  costs  as  above ;  which  bond,  together  with  a  state- 
ment of  the  costs  which  may  have  accrued  on  the  examination,  shall  be 
returned  to  the  office  of  the  clerk  of  the  circuit  court;  and,  upon  the. 
determination  of  the  proceedings  against  such  fugitive  within  that  county, 
the  clerk  shall  issue  a  fee  bill,  as  in  other  cases,  to  be  served  on  the 
persons  named  in  the  bond,  or  any  of  them ;  which  fee  bill  shall  be 
served  and  returned  by  the  sheriff,  for  which  he  shall  be  allowed  the 
same  fees  as  are  given  him  for  serving  notices.  If  the  fees  be  not  paid 
on  or  before  the  first  day  of  the  next  circuit  court,  to  be  holden  in  and 
for  that  county,  nor  any  cause  then  shown  why  they  should  not  be  paid, 
the  clerk  may  issue  an  execution  for  the  same,  against  those  parties  on 
whom  the  fee  bill  has  been  served;  and  when  the  said  fees  are  collected, 
shall  pay  over  the  same  to  the  persons  respectively  entitled  thereto. 
The  clerk  shall  be  entitled  to  fifty  cents  for  his  trouble  in  each  case,  be- 
sides the  usual  taxed  fees  which  are  allowed  in  other  cases  for  like  ser- 
vices :  Nothing  herein  contained  shall  prevent  the  clerk  from  instituting 
suits  on  said  bonds,  in  the  ordinary  mode  of  judicial  proceedings,  if  he 
shall  deem  it  proper." 

Form  of  Oath  to  be  administered  to  Witnesses. 

You  do  swear  that  you  will  true  answers  make  to  such  questions  as 
may  be  asked  you  touching  the  present  complaint  against  C.  D.  So 
help  you  God. 

form  of  Bond  for  Costs. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  E.  F.,  and  G-.  H., 

of ,  in  the  county  of  — : — ,  and  State  of  Illinois,   are  held  and 

firmly  bound  unto  Augustus  B.  Coates',  clerk  of  the  Circuit  Court  of 


CHAP.  6.]  FUGITIVES  FROM  JUSTICE.  243 

Lake  County,  in  said  State  of  Illinois,  and  to  his  successors  in  office, 
in  the  penal  sum  of dollars,  to  be  paid  to  the  said  clerk  as  afore- 
said, or  his  successors  in  office,  to  which  payment  well  and  truly  to  be 
made,  we  jointly  and  severally  bind  ourselves,  our  heirs,  executors  and 
administrators  firmly,  by  these  presents.  Sealed  with  our  seals,  dated 

this day  of ,  in  the  year  of  our  Lord,  one  thousand  eight 

hundred  and  fifty . 

Whereas  the  said  A.  B.  has  this  day  made  complaint,  on  oath, 
against  C.  D.,  before  L.  M.,  Esquire,  a  justice  of  the  peace  of  the 

said  county  of  Lake,  that  the  said  C.  D.,  on  the  day  of , 

18 — ,  at ,  in  the  county  of ,  and  State  of  Wisconsin  (set 

out  the  offense,*)  and  that  the  said  C.  D.  hath  fled  from  justice,  and 
Eas  prayed  that  a  warrant  issue  for  the  apprehension  of  the  said  C.  D. 

Now,  therefore,  the  condition  of  the  obligation  is  such,  that  if  the 
said  A.  B.  shall  well  and  truly  pay  all  costs,  which  may  accrue  from 
the  arrest  and  detention  of  the  said  C.  D.,  then  the  obligation  to  be 
void,  otherwise  to  be  and  remain  in  full  force  and  effect. 

Executed  and  delivered  in  the  ^  [SEAL.] 

presence  of  >•  [SEAL.] 

L.  M.,  J.  P.      J  [SEAL.] 


Form  of  Warrant. 


STATE  OF  ILLINOIS, 


COUNTY 


us,) 

,  r- 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

Whereas,  A.  B.  hath  this  day  made  complaint  on  oath,  (or  "affirma- 
tion") before  L.  M.,  Esquire,  one  of  the  justices  of  the  peace  of  said 

county,  that  C.  D.,  on  the day  of ,  18 — ,  at ,  in  the 

county  of ,  and  State  of  Wisconsin,  (here  set  out  the  offense,) 

and  that  the  said  C.  D.  hath  fled  from  justice  : 

We  therefore  command  you  forthwith  to  take  said  C.  D.,  and  bring 
him  before  the  said  L.  M.,  Esquire,  to  be  dealt  with  according  to  law. 
Hereof  fail  not  at  your  peril. 

Witness,  the  said  L.  M.,  Esquire,  at ,  in  the  said  county,  the 

day  of ,  18—. 

L.  M.,  /.  P.     [SEAL.] 


244  FUGITIVES   FROM   JUSTICE.  [PART  2, 


Form  of  Examination  of  Witnesses. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      ]"   ' 

The  examination  of  A.  33.,  G.  H.,  and  I.  J.,  taken  upon  oath  before 
me,  L.  M.,  Esquire,  a  justice  of  the  peace  of  the  said  county  of  Lake, 

on  the day  of ,  18 — ,  in  the  presence  and  hearing  of  C.  D., 

charged  before  me,  by  the  said  A.  B.  with,  on  the day  of , 

18 — ,  at ,  in  the  county  of ,  and  State  of  Wisconsin,  feloni- 
ously stealing,  taking,  &c.,  (set  out  the  offense  as  in  the  warrant,}  and 
with  having  fled  from  justice. 

The  said  A.  B.,  on  the  part  of  the  prosecution,  on  his  oath  aforesaid, 
before  me,  the  said  justice,  in  the  presence  and  hearing  of  said  C.  D., 
saith.  (Set  forth  the  evidence  of  A.  .5.) 

The  said  G.  H.,  on  the  part  of  the  prosecution,  on  his  oath  aforesaid, 
before  me,  the  said  justice,  in  the  presence  and  hearing  of  said  C.  D., 
saith.  (Here  set  forth  the  evidence  of  0.  H.~) 

The  said  I.  J.,  on  the  part  of  the  said  C.  D.,  on  his  oath  aforesaid, 
before  me,  the  said  justice,  in  the  presence  and  hearing  of  the  said  C. 
D.,  saith.  (Here  set  forth  the  evidence  of  I.  J.~) 

Taken  before  me  the  day  and^j  A.  B. 

year  first  above  mentioned.  G.  H. 

L.  M.,  /.  P.     J  I.  J. 

Form  of  Examination  of  Prisoner. 


STATE  OF  ILLINOIS, 
COUNTY, 


>BS. 


The  examination  of  C.  D.,  taken  before  me,  L.  M.,  Esquire,  a  jus- 
tice of  the  peace,  of  the  said  county,  on  the day  of ,  18 — , 

the  said  C.  D.  being  charged  by  A.  B.,  with  (set  out  the  offense  and 
fleeing  from  justice,  as  in  the  examination  of  witnesses.*)  He,  the  said 
C.  D.,  upon  his  examination  now  taken  before  me,  saith  that.  (Here  set 
out  the  prisoner' s  statement.*) 

Taken  before  me,  the  day  and.  j 
year  first  above  mentioned. 

L.  M.,  J.  P. 


CHAP.  6.]  FUGITIVES  FROM  JUSTICE.  245 

Form  of  Certificate  to  be  attached  to  the  examination  and  proceed- 
ings in  the  foregoing  case. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      j 

I,  the  subscriber,  a  justice  of  the  peace,  in  and  for  the  county  afore- 
said, do  hereby  certify  that  the  above  is  a  true  copy  of  the  examination 
and  proceedings  had  and  taken  before  me. 

L.  M.,  J.  P. 

The  forms  of  commitments,  recognizances,  &c.,  heretofore  given,  in 
cases  of  the  examination  of  persons  charged  with  a  criminal  offense,  will 
answer  in  the  foregoing  case,  with  slight  alterations,  to  conform  to  the 
facts. 


246  SEARCH   WARRANTS.  [PART  2, 


CHAPTER    VII. 

OF  SEAKCH  WAKKANTS. 

Kev.  Stat.  192,  Sec.  211.  "It  shall  be  lawful  for  any  judge  or 
justice  of  the  peace,  upon  complaint  made  before  him  upon  oath  or 
affirmation,  that  a  larceny  has  been  committed,  and  that  the  person 
affirming  or  swearing  does  verily  believe  that  the  stolen  goods  or  other 
property,  are  or  is  concealed  in  any  dwelling  house,  out-house,  garden, 
yard  or  other  place  or  places,  to  issue  a  warrant  under  his  hand,  com- 
manding every  such  dwelling  house  or  place  to  be  searched  in  the  day 
time ;  and  if  any  of  the  goods  described  in  any  such  warrant,  be  found 
therein,  then  that  the  said  goods  be  seized  or  brought  before  the  judge 
or  justice  issuing  said  warrant.  If,  upon  examination  of  witnesses 
before  the  judge  or  justice  of  the  peace  who  issued  said  warrant,  it 
shall  be  determined  by  such  judge  or  justice,  that  the  goods  so  brought 
before  him  have  been  stolen,  it  shall  be  the  duty  of  such  judge  or  jus- 
tice, either  to  keep  possession  of,  or  to  deliver,  or  cause  to  be  delivered, 
such  goods  to  the  sheriff  of  the  proper  county,  there  to  remain  until 
the  conviction  of  the  thief,  or  the  claimant's  right  be  otherwise  legally 
ascertained.  If  the  thief  shall  not  be  indicted  at  the  next  circuit  court 
after  the  goods  shall  be  seized,  and  an  action  shall  not  be  commenced 
against  the  person  or  persons  in  whose  possession  such  goods  shall  have 
been  found,  for  the  recovery  thereof,  within  one  month  after  a  circuit 
court  shall  have  been  held  after  such  seizure,  the  said  circuit  court 
shall,  at  then:  next  session,  order  such  goods  to  be  re-delivered  to  the 
person  in  whose  possession  they  were  found,  which  order  shall  be 
obeyed  by  the  person  in  whose  possession  such  goods  may,  at  the  time, 
be.  In  case  the  judge  or  justice  of  the  peace  shall,  upon  such  exami- 
nation as  aforesaid,  determine  that  such  goods  so  seized  had  not  been 
stolen,  then  the  goods  shall  be  immediately  restored  to  the  person  from 
whose  possession  they  were  so  taken." 


CHAP.  7.]  SEARCH  WARRANTS.  247 


STATE  OF  ILLINOIS, 
COUNTY, 


Form  of  Search   Warrant. 

>  ss. 


The  People  of  the  State  of  Illinois  to  the  Sheriff  or  any  Constable  of 
said  County  : 

Whereas  A.  B.  hath  this  day  made  complaint  on  oath,  before  L.  M., 
Esquire,  one  of  the  justices  of  the  peace  of  the  said  county,  that  on 

the day  of  ,  18 — ,  in  the  county   aforesaid,   divers 

goods  and  chattels  of  the  said  A.  B.,  that  is  to  say  (describe  the  stolen 
articles  accurately,}  were  feloniously  stolen,  taken,  and  carried  away 
by  some  person  or  persons  unknown,  or  by  C.  D.,  (describe  the  place 

ivith  certainty,  according  to  the  fact,}  situate  in in  the  said 

county : 

We  therefore  command  you,  with  necessary  and  proper  assistance,  to 
enter  in  the  day  time  into  the  said  dwelling  house  (the  place  above 
described,)  and  there  diligently  search  for  the  said  goods  and  chattels, 
and  if  the  same,  or  any  part  thereof,  shall  be  found  upon  such  search, 
that  you  bring  the  goods  and  chattels  so  found  before  the  said  justice, 
to  be  disposed  of  according  to  law. 

Witness  the  said  L.  M.,  Esquire,  at in  the  said  county,  the 

day  of ,  18—. 

L.  M., 
Justice  of  the  peace. 

Form  of  Warrant  for  a   Witness. 

STATE  OF  ILLINOIS, 
COUNTY, 

The  People  of  the  State  of  Illinois  to  the  Sheriff,  or  to  any  Constable 
of  said  County : 

Whereas  complaint  hath  been  made  on  oath  before  L.  M.,  Esquire,  a 
justice  of  the  peace  of  the  said  county,  by  A.  B.,  that  (here  set  out  the 
larceny  and  the  concealment  of  property  as  in  the  warrant,}  and  that 
C.  D.  is  a  material  and  necessary  witness  to  be  examined  concerning 
the  stealing  of  the  same,  and  it  appearing  that  said  goods  and  chattels 
have  been  brought  before  the  said  justice  : 

We  therefore  command  and  require  you  to  cause   the  said  C.  D. 


248  SEARCH  WARRANTS.  [PART  2, 

forthwith  to  come  before  the  said  justice,  to  give  such  information  and 
evidence  as  he  knoweth  concerning  the  premises. 

Witness  the  said  L.  M.,  Esquire,  at in  the  county  aforesaid, 

this day  of ,  18 — . 

L.  M., 
Justice  of  the  peace. 


Form  of  Record. 


>  ss. 


Be  it  remembered,  that  on  the day  of ,  18 — ,  A.  B. 

appeared  and  made  complaint  on  oath  before  L.  M.,  Esquire,  a  justice 

of  the  peace  of  said  county,  that,  on  the day  of ,  18 — , 

at -,  in  the  said  county,  divers  goods  and  chattels  of  the  said 

A.  B.,  that  is  to  say,  one  gold  watch  and  six  silver  tea  spoons, 
(describe  the  articles  stolen,}  were  feloniously  stolen,  taken,  and 
carried  away  by  some  person  or  persons  unknown,  (or  "  by  E.  F.,") 
and  that  he  verily  believes  that  the  said  goods  and  chattels,  or  some 
part  thereof,  were  concealed  in  the  dwelling  house  then  occupied  by 

E.  F.,  (the  place  describe  as  in  the  warrant,}  situate  in  ,  in 

the  said  county ;  whereupon  I  the  said  justice  issued  a  warrant  to  the 
sheriff  or  any  constable  of  the  said  county,  to  enter  and  diligently  search 
the  said  dwelling  (the  place  describe,}  in  the  day  time,  for  the  said 
goods  and  chattels,  and  if  any  of  them  should  be  found,  to  seize  the 
same  and  bring  them  before  me,  to  be  disposed  of  according  to  law. 

That  afterwards,  on  the day  of ,  18 — ,  J.  K.,  one 

of  the  constables  of  the  said  county,  returned  the  said  warrant,  and 
therewith  brought  before  me  the  goods  and  chattels  therein  described, 

whereupon  I  did  immediately,  (or  "on  the  day  of , 

18 — ,")  proceed  to  the  examination  of  all  witnesses  produced  before 
me,  touching  the  said  complaint,  and  after  considering  the  proofs 
adduced,  I  did  adjudge  and  determine  that  the  said  goods  and  chattels 
had  been  stolen,  (or  "  had  not  been  stolen.") 

And  I  did  therefore  deliver  the  said  goods  and  chattels  to  the 
sheriff  of  the  said  county,  there  to  remain  until  the  conviction  of  the 
thief,  or  the  claimant's  right  be  otherwise  ascertained,  (or  if  the  justice 
keeps  the  goods,  &c.  then  say,} 

And  I  did  thereupon  retain  and  keep  possession  of  the  said  goods 
and  chattels,  so  that  they  should  remain  with  me  until  the  conviction 


CHAP.  7.]          SEARCH  WARRANTS.  249 

of  the  thief,  or  the  claimant's  right  be  otherwise  ascertained.     {If  the 
justice  determines  that  the  goods,  &c.  were  not  stolen,  then  say,) 

And  did  thereupon  immediately  restore  to  the  said  E.  F.,  the  said 
goods  and  chattels,  from  whose  possession  they  were  so  taken. 

In  witness  whereof,  I  the  said  L.  M.,  justice  as  aforesaid,  have 

hereunto  set  my  hand,  this  day  of  18 — ,  at  ,  in  the 

county  aforesaid. 

L.  M., 
Justice  of  the  Peace. 


250  VARIOUS   MISDEMEANORS.  [PART  2, 


CHAPTER   VIII. 

OF  PROCEEDINGS  IN  RELATION  TO  VARIOUS  MISDEMEAN- 
ORS, BY  j  ATTEMPTING  TO  INFLUENCE  ELECTORS;  OF 
SABBATH  BREAKING,  AND  OF  DISTURBING  WORSHIPING 
ASSEMBLIES. 

I.   OF    PENALTIES,    AND    MANNER    OF   PROCEEDING   BY    THE 

JUSTICE. 

II.  FORMS  OF  PROCEEDING  IN  CASE  OF  SABBATH  BREAKING. 
III.  FORMS  OF  PROCEEDING  IN  CASE  OF  DISTURBING  WORSHIPING 
ASSEMBLIES. 

I.  OF  PENALTIES  AND  MANNER  OF  PROCEEDING  BY  THE  JUSTICE. 

Rev.  Stat.  177,  Sec.  143.  "If  any  person  shall  by  bribery,  menace, 
treating,  or  other  corrupt  means  or  device  whatsoever,  either  directly 
or  indirectly  attempt  to  influence  any  elector  of  this  State  in  giving  his 
vote  at  any  election,  every  person  so  offending,  and  being  thereof 
convicted,  shall  be  fined  not  exceeding  five  hundred  dollars,  and  shall 
thereafter  be  disqualified  from  voting  at  any  election  in  this  State  for 
five  years. 

"  Sec.  144.  Any  person  who  shall  hereafter  knowingly  disturb  the 
peace  and  good  order  of  society  by  labor  or  amusement  on  the  first  day 
of  the  week,  commonly  called  Sunday,  (works  of  necessity  and  charity 
excepted,)  shall  be  fined  upon  conviction  thereof,  in  any  sum  not 
exceeding  five  dollars. 

"  Sec.  145.  The  preceding  section  shall  not  bo  construed  to  prevent 
watermen  from  landing  their  passengers,  lading  and  unlading  their 
cargoes,  or  ferrymen  from  carrying  over  the  water  travelers  or  persons 
moving  with  their  families  on  the  first  day  of  the  week ;  nor  to  prevent 
the  due  exercise  of  the  rights  of  conscience  by  any  person  who  may 


CHAP.  8.]  VARIOUS  MISDEMEANORS.  251 

think  proper  to  keep  any  other  day  as  a  Sabbath,  than  the  first  day  of 
the  week. 

"  Sec.  146.  Whoever  shall  be  guilty  of  any  noise,  rout  or  amuse- 
ment on  the  first  day  of  the  week,  called  Sunday,  whereby  the  peace 
of  any  private  family  may  be  disturbed,  such  person  so  offending,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof,  shall 
be  fined  in  any  sum  not  exceeding  twenty-five  dollars. 

"  Sec.  147.  Any  person  who  shall,  by  menace,  profane  swearing, 
vulgar  language,  or  any  disorderly  or  immoral  conduct,  interrupt  and 
disturb  any  congregation  or  collection  of  citizens  assembled  together  for 
the  purpose  of  worshiping  Almighty  God,  or  who  shall  sell,  or  attempt 
to  sell,  or  otherwise  dispose  of  ardent  spirits  or  liquors,  or  any  articles, 
which  will  tend  to  disturb  any  worshiping  congregation  or  collection  of 
people,  within  one  mile  of  such  place,  unless  the  person  so  selling  or 
disposing  of  said  spirituous  liquors  or  articles,  shall  be  regularly 
licensed  to  keep  a  tavern  or  grocery,  and  shall  sell  the  same  at  his  said 
tavern  or  grocery,  any  person  so  offending  shall  be  deemed  guilty  of  a 
high  misdemeanor,  and  upon  conviction,  shall  be  fined,  in  any  sum  not 
exceeding  fifty  dollars :  Provided,  That  this  section  shall  not  be  so  con- 
strued as  to  affect  any  person  who  may  sell  whisky  or  any  other  ardent 
spirits  at  his  own  distillery,  store  or  dwelling  house. 

';  Sec.  148.  Justices  of  the  peace,  respectively,  in  their  several 
counties,  shall  have  jurisdiction  of  the  aforesaid  offenses,  and  may,  on 
view  or  upon  information  on  oath,  cause  every  such  person,  having 
offended  as  aforesaid,  to  be  apprehended  and  brought  before  him  to 
answer  such  charge. 

"  Sec.  149.  Any  person  who  shall  be  accused  of  either  of  the 
offenses  specified  in  the  five  preceding  sections,  if  he  choose  it,  shall 
have  the  cause  tried  by  a  jury  of  six  lawful  jurors,  and  if  he  shall  in- 
sist on  a  full  jury,  by  twelve,  who  shall  be  summoned  to  try  the  cause ; 
and  if  the  jury  shall  find  the  accused  guilty,  they  shall  assess  and  state 
the  amount  of  the  fine,  not  more  than  in  said  sections  specified  ;  upon 
which  the  justice  before  whom  the  trial  shall  be  had,  or  in  case  the  per- 
son shall  plead  guilty,  shall  give  judgment  for  fine  and  costs,  and  pro- 
ceed to  collect  the  same  without  delay ;  and  when  said  fine  shall  be 
collected,  the  officer  or  person  collecting  the  same  shall  be  required  to 
pay  it  over  without  delay  to  the  treasurer  of  the  proper  county,  taking 
his  receipt  therefor  ;  and  which  receipt  shall  be  filed  with  the  clerk  of 
the  county  commissioners'  court ;  after  which  the  said  fine  or  fines  which 
may  be  thus  deposited  shall  be  subject  to  the  control  of  said  court,  and 


, 

252  FORMS. SABBATH    BREAKING.  [PART  2, 

appropriated  to  the  education  of  any  poor  orphan  child  or  children  of 
the  proper  county. 

"  Sec.  150.  The  judgments  rendered  under  the  six  preceding  sec- 
tions shall  be  subject  to  appeals  as  in  cases  of  assault  and  battery  and 
affrays,  and  shall  be  collected  in  the  same  manner." 


II.       FORMS    OF    PROCEEDING    IN    CASE    OF    SABBATH   BREAKING. 

Form  of  Warrant  for  offense  injustice's  presence. 

STATE  OF  ILLINOIS,") 
COUNTY,      j  Si 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

Whereas,  on  the  day  of instant,  at in  said 

county,  C.  D.  did,  in  the  presence  of  the  subscriber,  L.  M.,  Esquire, 
one  of  the  justices  of  the  peace  of  said  county,  knowingly  disturb  the 
peace  and  good  order  of  society  by  amusements  on  the  first  day  of  the 
week,  commonly  called  Sunday,  to  wit,  by  (Jiere  state  the  manner  of 
the  disturbance.) 

These  are  therefore  to  command  you  forthwith  to  take  the  said  C.  D. 
and  bring  him  before  the  said  justice  to  answer  the  said  charge,  and  to 
be  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,  185-. 

L.  M.,  J.  P.         [SEAL.] 


STATE  OF  ILLINOIS, 
COUNTY, 


Form  of  Information. 


>  S3. 


The  information  and  complaiat  of  L.  M.,  made  before  E.  F.,  Esquire, 

one  of  the  justices  of  the  peace  of  the  said  county,  the day  of 

,  185-,  who  upon  oath,  says,  that  on  the day  of 

instant,  being  the  first  day  of  the  week,  called  Sunday,  C.  D.  did  make 
a  noise  (Jiere  state  the  facts)  whereby  the  peace  of  the  family  of  the 
said  L.  M.  was  disturbed,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.  He  therefore  prays  that  the  said  C.  D.  may 
be  required  to  answer  this  complaint. 

Exhibited  before  me,  this day  )  L.  M. 

of ,185-.  E.  F., 

Justice  of  the  Peace. 


CHAP.  8.]  FOKMS. — SABBATH  BREAKING. 

Form  of  Warrant  on  Information. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

Whereas,  L.  M.  has  this  day  made  and  exhibited  an  information  and 

complaint,  upon  oath,  before  E.  F.,  Esquire,  a  justice  of  the  peace  of 

the  said  county,  that  on  the day  of ,  18 — ,  being  the  first 

day  of  the  week,  being  Sunday,  at ,  in  said  county,  C.  D.  did 

make  a  noise,  (state  the  offense  as  in  the  complaint,*)  whereby  the 
peace  of  the  family  of  the  said  L.  M.  was  disturbed,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided  : 

We,  therefore,  command  you  forthwith  to  take  the  said  C.  D.  and 
bring  him  before  the  said  justice,  to  answer  the  said  charge,  and  further 
to  be  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day  of 

1Q 

,   J.O 

E.  F.,  /.  P.     [SEAL.] 

Record  of  Conviction  for  offense  in  the  view  of  the  Justice. 

STATE  OF  ILLINOIS,  ) 
COUNTY,    j  ss< 


Be  it  remembered  that  on  the day  of ,  18 — ,  at 


the  said  county,  C.  D.  did,  in  my  view,  (set  forth  the  offense,  as  in 
the  information,)  and,  thereupon,  I  caused  the  said  C.  D.  to  be  arrested 
and  brought  before  me,  he  still  remaining  in  my  view,  and  I  proceeded, 
in  the  presence  of  the  said  C.  D.,  (if  a  jury  was  required, add,  "and 
of  a  jury,  at  the  request  of  the  said  C.  D.,  for  that  purpose  empan- 
neled  and  sworn,")  to  enquire  into  the  truth  of  the  said  charge,  and, 
after  hearing  the  proofs  and  allegations  of  the  parties,  the  said  C.  D., 

on  the  said day  of ,  18 — ,  by  me,  the  said  justice,  (if  a 

jury  was  sworn,  say,  "  by  the  verdict  of  the  said  jury,")  was  convicted 
of  the  offense  aforesaid,  and  I,  (or  "  the  said  jury,")  assessed  the  fine 

which  he  should  pay  at  the  sum  of dollars  : 

Therefore,  it  is  adjudged  and  determined  by  me,  the  said  justice,  the 
said  C.  D.,  for  the  offense  aforesaid,  shall  forfeit  and  pay  the  said  sum 

of dollars,  so  assessed  by  me,  (or  "  by  the  said  jury,")  and  I 

did  further  adjudge  and  determine  that  the  said  C.  D.  should  pay  the 
sum  of dollars,  for  the  costs  and  charges  of  this  prosecution. 


254  FORMS. SABBATH   BKEAKIXG.  [PART  2, 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal,  this 

day  of ,  18 — . 

L.  M.,  /.  P.     [SEAL.] 

Record  of  Conviction  on  an  Information. 
STATE  OF  ILLINOIS, 


COUNTY,       f ss' 


Be   it  remembered,  .that  on  the day  of ,  18 — ,  L.  M., 

came  before  me,  E.  F.,  Esquire,  a  justice  of  the  peace  of  said  county, 
and  made  .and  exhibited  his  complaint  and  information  upon  oath,  and 

gave  me  to  understand  and  be  informed,  that  on  the day  of , 

instant,  at ,  in  the  said  county,  C.  D.  did  (set  forth  the  offense 

as  in  the  complaint) ;  that  thereupon  I  issued  a  warrant  and  caused 
the  said  C.  D.  to  be  apprehended  and  brought  before  me ;  that  after- 
wards, on  the  day  of ,  18 — ,  I  proceeded  (conclude 

as  in  the  preceding  form.) 

Warrant  of  Distress  to  levy  Fine  and  Costs. 


STATE  OF  ILLINOIS, 
COUNTY, 


>-ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

Whereas  upon  the   information   and   complaint  of  L.  M.,   lately 

exhibited  upon  oath  before  E.  F.,  a  justice  of  the  peace  of  said  county, 

against  C.  D.,  for  that  on  the day  of ,  18 — ,  being  the 

first  day  of  the  week,  called  Sunday,  he  did  make  a  noise  (here  state 
the  facts  as  in  the  complaint)  whereby  the  peace  of  the  family  of  the 
said  L.  M.  was  disturbed,  and  thereupon  the  said  justice  issued  his 
warrant  and  caused  the  said  C.  D.  to  be  apprehended  and  brought 
before  him,  and  proceeded  in  the  presence  of  the  said  C.  D.,  (if  a 
jury  was  sworn,  then  add,  "  and  of  a  jury  at  the  request  of  the  said 
C.  D.  for  that  purpose  empanneled  and  sworn,)  to  enquire  into  the 
truth  of  the  said  charge,  and  after  hearing  the  proofs  and  allegations 

of  the  parties,  the  said  C.  D.,  on  the day  of ,  18 — ,  by 

the  said  justice,  (or  "  by  the  verdict  of  the  said  jury,")  was  convicted 
of  the  offense  aforesaid,  and  the  said  justice  (or  "the  said  jury") 

assessed  the  fine  which  he  should  pay,  at  the  sum  of dollars. 

And  the  said  justice  thereupon  adjudged  and  determined  that  the  said 
C.  D.,  for  the  said  offense,  should  forfeit  and  pay  the  said  sum  of 


CHAP.  8.]      FORMS. — DISTURBING  WORSHIPING  ASSEMBLIES.         255 

dollars,  and  the  sum  of  dollars  for  the   costs   and 

charges  of  said  prosecution  : 

We  therefore  command  you  immediately  to  levy  the  said  sum  of 

dollars  for  the  fine  aforesaid,  and  also  the  sum  of 

dollars  for  the  costs  and  charges  aforesaid,  by  distress  and  sale  of 
the  goods  and  chattels  of  the  said  0.  D.,  giving  twenty  days'  notice 
of  the  day  of  sale,  by  posting  up  written  or  printed  advertisements  in 
three  of  the  most  public  places  in  the  county.  And  do  you  return 
this  precept  with  all  convenient  speed,  with  what  you  shall  do  by 
virtue  hereof. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,  A.  D.  18— . 

E.  F.  /.  P.     [SEAL.] 


III.      FORMS  OF   PROCEEDING   IN    CASE   OF   DISTURBING  WORSHIPING 
ASSEMBLIES. 

Form  of  Complaint. 
STATE  OF  ILLINOIS, 


COUNTY,      $ ss' 


The  complaint  and  information  of  E.  F.  of  said  county,  made  before 
C.  D.,  Esquire,  one  of  the  justices  of  the  peace  in  and  for  the  said 

county,  on  the day  of  ,  18 — ,  who  being  duly  sworn 

by  the  said  justice  on  his  oath,  says  that  on  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ,  at 

,  in  the  said  county,  L.  M.  of  said  county,  did  interrupt  and 

disturb  a  collection  of  citizens,  then  and  there  in  a  (describe  the  house 
or  grove, ,)  assembled  together  for  the  purpose  of  worshiping  Almighty 
God,  by  loud  and  profane  swearing  (or  as  the  case  may  be~),  in  the 
presence  and  hearing  of  said  collection  of  citizens  so  assembled. 


Exhibited  before  me  on  the  day  and 
year  first  aforesaid. 

C.  D., 
Justice  of  the  Peace. 


E.  F. 


256  FORMS. — DISTURBING   WORSHIPING   ASSEMBLIES.  [PART  2, 

Form  where  the  disturbance  is  by  selling  liquor  by  a  person  licensed, 

but  who  does  not  sell  at  his  tavern  or  grocery. 
STATE  OF  ILLINOIS, 


COUNTY,      f ss' 


The  complaint  and  information  of  E.  F.  of  said  county,  made  before 
C.  D.,  Esquire,  one  of  the  justices  of  the  peace  in  and  for  the  said 

county,  on  the day  of ,  in  the  year  of  our  Lord,  &c., 

who  being  duly  sworn  by  the  said  justice,  upon  his  oath   says  that 

L.  M.,  on  the  day  of,  &c.,  at ,  in  said  county,  and 

not  at  the  store,  distillery,  dwelling  house,  tavern  or  grocery,  of  the 
said  L.  M.,  and  within  one  mile  of  the  place  where  a  congregation  of 
citizens  were  then  and  there  actually  assembled  together  in  a  (describe 
the  house  or  grove}  for  the  purpose  of  worshiping  Almighty  God,  did 
sell  ardent  spirits  to  S.  R.,  and  to  divers  other  persons,  and  thereby 
did  then  and  there  interrupt  and  disturb  the  said  congregation  so 
assembled. 

Exhibited  before  me  on  the  day  and  ^  E.  F. 

year  first  aforesaid. 

C.  D., 
Justice  of  the  Peace. 

Form  where  the  disturbance  is  by  selling  liquor  by  a  person 

not  licensed. 
STATE  OF  ILLINOIS, 


DIS,  ) 

,  r- 


The  complaint  and  information  of  E.  F.  of  said  county  made  before 
C.  D.,  Esquire,  one  of  the  justices  of  the  peace  in  and  for  said  county, 

on  the  day  of,  &c.,  who  being  duly  sworn,  on  his  oath  says 

that  L.  M.  of  said  county,  on  the  day  of,  &c.,  at  ,  in 

said  county,  and  not  at  the  store,  distillery,  or  dwelling  house  of  the 
said  L.  M.,  and  without  being  regularly  licensed  to  keep  a  tavern  or 
grocery,  and  within  one  mile  of  the  place  where  a  congregation  of 
citizens  were  then  and  there  actually  assembled  together  in  a  (describe 
the  house  or  grove}  for  the  purpose  of  worshiping  Almighty  God,  did 
sell  ardent  spirits  to  G.  H.,  and  to  divers  other  persons,  and  thereby 
did  then  and  there  interrupt  and  disturb  the  said  congregation  so 
assembled. 

Exhibited  before  me  on  the  day  and   ^j  E.  F. 

year  first  aforesaid. 

C.  D.,  f 

Justice  of  the  Peace. 


CHAP.  8.]    FORMS. — DISTURBING  WORSHIPING  ASSEMBLIES.  257 

Form  of  Warrant. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      j  Sf 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 
Whereas,  E.  F.  of  said  county,  has  this  day  made  complaint,  on  oath, 
before  J.  K.,  Esquire,  one  of  the  justices  of  the  peace  in  and  for  said 
county,  that  L.  M.,  of  said  county,  on  (set  out  the  complaint.) 

These  are,  therefore,  to  command  you  forthwith  to  apprehend  the 
said  L.  M.,  and  bring  him  before  the  said  justice,  to  answer  the  said 
complaint,  and  further  to  be  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day  of 

,  18—. 

J.  K.,  /.  P.     [SEAL.] 

The  various  forms  heretofore  given  in  other  cases,  for  subpoana,  venire, 
&c.,  may  be  used  here,  by  being  varied  to  suit  the  occasion. 

Record  of  Conviction. 

'* 

STATE  OF  ILLINOIS, 


COUNTY,       f 


Be  it  remembered,  that  on  the day  of ,  in  the  year  of,  &c., 

E.  F.,  of  said  county,  came  before  me,  J.  K.,  Esquire,  one  of  the 
justices  of  the  peace  in  and  for  the  said  county,  and  made  and  exhibited 
his  complaint,  upon  oath,  and  gave  me  to  understand  and  be  informed 
that  on,  &c.,  at,  &c.,  (recite  the  complaint  to  the  end);  that,  thereupon, 
I  issued  a  warrant,  and  caused  the  said  L.  M.  to  be  apprehended,  and 
brought  before  me ;  that  afterwards,  on  the day  of,  &c.,  I  pro- 
ceeded, in  the  presence  of  the  said  L.  M.,  (if  there  was  a  jury,  say, 
"  and  of  a  jury,  at  the  request  of  the  said  L.  M.  for  that  purpose  em- 
panneled  and  sworn,")  to  enquire  into  the  truth  of  the  said  charge, 
and  after  hearing  the  proofs  and  allegations  of  the  parties,  the  said  L.  M., 
on  the  said  day  of,  &c.,  by  me,  the  said  justice,  (or,  if  a  jury,  say, 
"  by  the  verdict  of  the  jury,")  was  convicted  of  the  said  offense,  and  I, 
(or  "  the  said  jury,")  assessed  the  fine  which  he  should  pay  at  the  sum 
of dollars. 

Therefore,  it  is  adjudged  and  determined  by  me,  the  said  justice,  that 
the  said  L.  M.,  for  the  offense  aforesaid,  shall  forfeit  and  pay  the  sum 

of dollars,  so  assessed ;  and  I  do  further  adjudge  and  dcter- 

16 


258  FOKMS. — DISTURBING   WORSHIPING   ASSEMBLIES.        [PART  2, 

mine  that  the  said  L.  M.  shall  pay  the  sum  of dollars,  for  the 

costs  and  charges  of  this  prosecution. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal,  this 

day  of ,  18 — . 

J.  K.,  J.  P.     [SEAL.] 

Warrant  of  Distress. 

STATE  OP  ILLINOIS,") 
COUNTY,      j  ss' 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 
Whereas,  upon  the  information  and  complaint  of  B.  F.,  of  said 
county,  lately  exhibited  upon  oath,  before  J.  K.,  a  justice  of  the  peace 
in  and  for  said  county,  against  L.  M.,  of  the  said  county,  for  that  on, 
&c.,  at,  &c.,  (as  in  complaint)  •  and,  thereupon,  the  said  justice  issued 
his  warrant,  and  caused  the  said  L.  M.  to  be  apprehended  and  brought 
before  him,  and  proceeded,  in  the  presence  of  the  said  L.  M.,  (if  a 
fury,  then  add,  "  and  of  a  jury,  at  the  request  of  the  said  L.  M.  for 
that  purpose  empanneled  and  sworn,")  to  enquire  into  the  truth  of  the 
said  charge,  and  after  hearing  the  proofs  and  allegations  of  the  parties, 

the  said  L.  M.,  on  the day  of,  &c.,  by  the  said  justice,  (or  "  by 

the  verdict  of  the  said  jury,")  was  convicted  of  the  offense  aforesaid; 
and  the  said  justice,  (or  "  the  said  jury,")  assessed  the  fine  which  he 

should  pay  at  the  sum  of dollars  ;  and  the  said  justice  thereupon 

adjudged  and  determined  that  the  said  L.  M.  for  the  said  offense  should 

forfeit  and  pay  the  sam  of dollars,  for  the  costs  and  charges  of 

the  said  prosecution : 

We,  therefore,  command  you,  without  delay,  to  levy  the  said  sum  of 

dollars,  for  the  fine  aforesaid,  and  also  the  sum  of dollars 

for  the  costs  and  charges  aforesaid,  by  distress  and  sale  of  the  goods  and 
chattels  of  the  said  L.  M. ;  and  do  you  return  this  precept  with  all  con- 
venient speed,  with  what  you  shall  do  thereon. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day  of 

,  18—. 

J.  K.,  J.  P.     [SEAL.] 


CHAP.  9.]  ASSAULT  AND  BATTERY.  259 


CHAPTER    IX. 

OF  PROCEEDINGS  IN  CASES  OF  ASSAULT,  ASSAULT  AND 
BATTERY,  AND  AFFRAYS. 

Assault  and  battery  is  the  unlawful  beating  of  another.1 

Kev.  Stat.  329,  Sec.  95.  ' '  In  all  cases  of  assault,  assault  and  bat- 
tery, and  frays,  any  justice  of  the  peace  may,  upon  his  own  knowledge, 
or  upon  oath  of  any  competent  person,  issue  his  warrant  to  any  consta- 
ble in  his  county  for  the  arrest  of  every  person  charged  with  either  of 
said  offenses ;  and  upon  the  arrest  of such  person,  shall  cause  a  jury  to 
be  summoned,  (unless  the  party  accused  shall  dispense  with  a  jury,) 
who  shall  hear  the  cause,  and  if  they  find  the  accused  guilty,  shall  assess 
such  fine  as  they  shall  deem  just,  not,  however,  to  be  less  than  three  nor 
more  than  one  hundred  dollars. 

"  Sec.  96.  Upon  the  jury  returning  their  verdict  of  guilty,  and  the 
assessment  of  the  fine,  the  justice  shall  record  the  same  in  his  docket  or 
record  book,  and  proceed  to  render  judgment  thereon  for  the  amount 
of  the  said  fine  and  costs ;  but  if  the  jury  return  a  verdict  of  not  guilty, 
the  justice  shall  record  the  same,  and  discharge  the  defendant  or  defend- 
ants without  costs. 

"  Sec.  97.  Upon  the  rendition  of  such  judgment,  the  justice  shall 
issue  execution  for  the  fine  and  costs,  which  may  be  levied  upon  any 
personal  property  of  the  defendant  or  defendants,  which  shall  be  sold 
for  whatever  it  will  bring  in  cash,  after  giving  notice  as  in  other  cases  : 
Provided,  however,  That  if  the  party  so  convicted  have  a  family,  then 
the  constable  shall  reserve  from  execution  one  bed  and  bedding,  one 
cow,  and  ten  dollars'  worth  of  household  and  kitchen  furniture. 

"  Sec.  98.  If  the  constable  shall  return  upon  such  execution,  that  the 
defendant  or  defendants  have  no  goods  and  chattels  whereof  to  make 
the  money,  the  justice  shall  issue  a  capias  against  the  body  of  the  de- 

(1)  Kev.  Stat.  159,  Sec.  53. 


260  ASSAULT    AND    BATTERY.  [PART   2, 

fendant  or  defendants,  and  the  constable  shall  arrest  such  person  or 
persons,  and  commit  him  or  them  to  the  jail  of  the  county,  there  to  re- 
main forty-eight  hours ;  and  if  the  fine  exceed  ten  dollars,  then  to  re- 
main in  said  jail  twenty-four  hours  for  every  five  dollars  over  and  above 
the  said  ten  dollars,  and  so  on  in  proportion  to  the  amount  of  said  fine. 

"  Sec.  99.  If  any  person  so  convicted,  shall  wish  to  appeal  to  the  circuit 
court,  he  shall  signify  the  same  to  the  justice  of  the  peace  who  gave  the 
judgment,  and  the  justice  shall  give  him  a  statement  of  the  amount  of  the 
fine  and  costs,  and  upon  producing  the  same  to  the  clerk  of  the  circuit 
court  of  the  proper  county,  the  clerk  shall  write  a  bond  to  the  people  of 
the  State  of  Illinois,  in  a  penalty  double  the  amount  of  the  fine,  and  a 
sufficiency  to  cover  all  costs,  conditioned  for  the  payment  of  the  amount 
of  whatever  judgment  the  court  may  render  against  said  defendant, 
which  the  said  party  appealing  shall  execute,  with  sufficient  security  to 
be  approved  by  the  said  clerk ;  and  when  such  bond  shall  be  executed, 
the  clerk  shall  notify  the  justice  who  tried  the  cause  thereof,  and  the 
said  justice  shall  stay  all  further  proceedings,  and  return  the  papers  to 
the  next  succeeding  circuit  court,  when  the  same  shall  be  tried :  Pro- 
vided, All  such  appeals  shall  be  prayed  for,  and  the  bond  executed, 
within  five  days  after  judgment  rendered. 

' '  Sec.  100.  If  the  defendant  shall  be  found  guilty  in  the  circuit  court, 
judgment  shall  be  rendered  against  both  principal  and  security  in  the 
appeal  bond,  for  the  amount  of  the  fine  assessed  by  the  jury  in  said 
court,  and  all  costs  that  may  have  accrued. 

"  Sec.  101.  If  any  person  shall  be  dissatisfied  with  the  verdict  given 
in  such  cases,  before  any  justice  of  the  peace,  because  of  the  fine  being 
too  low,  or  because  the  defendant  may  have  been  acquitted,  he  shall  be 
permitted  to  remove  the  said  case  into  the  circuit  court,  upon  his  exe- 
cuting bond  to  the  people  of  the  State  of  Illinois,  before  the  clerk,  in  a 
penalty  sufficient  to  cover  all  costs  that  have  or  may  accrue,  conditioned 
for  the  payment  of  all  costs,  in  case  the  defendant  shall  be  acquitted, 
or  the  fine  not  increased ;  which  bond  shall  be  executed  in  ten  days 
after  the  judgment  of  the  justice  shall  have  been  given ;  and  when  said 
bond  is  executed,  the  clerk  shall  notify  the  justice  thereof,  and  said 
justice  shall  return  all  the  proceedings  to  the  said  court ;  and  if  the  de- 
fendant shall  be  acquitted  in  the  circuit  court,  or  the  fine  not  increased 
by  the  jury,  the  court  shall  render  judgment  against  the  party  who  re- 
moved the  said  case  into  the  circuit  court,  and  his  security  in  the  appeal 
bond,  for  all  costs  occasioned  by  the  appeal :  Provided,  The  party  re- 
moving a  case  into  the  circuit  court  shall  not  be  a  witness  against  the 
defendant  in  said  court,  upon  the  trial  of  such  appeal. 


CHAP.  9.]  ASSAULT  AND  BATTERY.  261 

"Sec.  102.  When  any  defendant  convicted  of  either  of  the  said 
offenses,  or  any  person  dissatisfied  with  the  verdict  as  aforesaid,  appeals 
to  the  circuit  court,  it  shall  be  the  duty  of  the  justice  to  return  to  the 
clerk  when  he  returns  the  papers  in  the  case,  the  names  of  all  the  ma- 
terial witnesses  who  shall  have  testified  on  the  trial,  and  the  clerk  shall 
issue  subpoenas  for  them. 

"  Sec.  103.  When  the  case  is  removed  into  the  circuit  court,  as 
provided  by  the  one  hundred  and  first  section,  the  party  removing  it 
shall  cause  a  summons  to  be  issued  and  served  upon  the  defendant, 
notifying  him  of  the  appeal ;  and  if  the  defendant  cannot  be  found  in 
the  county,  to  serve  said  process  upon,  the  case  shall  not  be  continued ; 
but  the  court  shall  cause  his  appearance  to  be  entered,  and  proceed  to 
trial,  as  though  the  defendant  were  present,  and  had  filed  the  plea  of 
not  guilty. 

"  Sec.  1 04.  If  any  person  accused  of  either  of  the  above  offenses  shall 
confess  himself  guilty,  the  jury,  or  the  justice,  if  he  shall  not  require  a 
jury,  shall  hear  the  evidence  and  assess  the  fine ;  and  the  justice  shall 
enter  judgment  and  issue  execution,  subject  to  appeal  as  in  other  cases. 

"  Sec.  105.  No  person  shall  be  proceeded  against  for  the  commis- 
sion of  any  of  the  offenses  herein  enumerated,  after  the  expiration  of 
twelve  months  from  the  time  the  offense  was  committed,  unless  such 
offender  shall  withdraw  himself  from  the  county  for  the  purpose  of 
avoiding  trial,  in  which  case  he  shall  be  tried  at  any  time  within  twelve 
months  after  his  return  or  apprehension." 

Form  of  Complaint  for  an  Assault. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  ss 

The  information  and  complaint  of  A.  B.,  of ,  in  said  county, 

who.  being  duly  sworn,  upon  his  oath  says,  that  C.  D.,  of ,  in  the  said 

county,  on  the day  of ,  18 — ,  with  force  and  arms,  at , 

in  the  county  aforesaid,  him,  the  said  A.  B.,  did  unlawfully  make  an 
attempt  to  strike,  beat,  and  wound  with  a  cane,  then  and  there  having 
the  ability  to  commit  the  said  injury.  He,  therefore,  prays  that  the  said 
C.  D.  may  be  arrested  and  dealt  with  according  to  law. 

Subscribed  and  sworn  before  me,  this  ^  A.  B. 

day  of ,  18—.  (. 

L.  M.,  J.  P. 


262  ASSAULT    AND    BATTERY.  [PART  2, 

Form  of  Information  and  Complaint  for  Assault  and  Battery. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      }  Sk 

The  information  and  complaint  of  A.  B.,  of ,  in  said  county, 

who,  being  duly  sworn,  upon  his  oath  says,  that  C.  D.,  of ,  in  the 

said  county,  on  the day  of ,  18 — ,  with  force  and  arms,  at 

,  in  the  county  aforesaid,  in  and  upon  the  said  A.  B.,  did  make 

an  assault,  and  with  his  hands  and  feet  did  then  and  there  beat,  bruise, 
wound  and  injure  him,  the  said  A.  B.  He,  therefore,  prays  that  the 
said  C.  D.  may  be  arrested  and  dealt  with  according  to  law. 

Subscribed  and  sworn  before  me,  this ")  A.  B. 

day  of ,  18—. 

L.  M.,  J.  P. 

form  of  Information  and  Complaint  for  an  Affray. 


STATE  OF  ILLINOIS, 


COUNTY 


)is, ) 

,  }ss- 


The  information  and  complaint  of  A.  B.,  who  being  duly  sworn,  upon 

his  oath  says,  that  C.  D.  and  G.  H.,  on  the day  of ,  18 — , 

at ,  in  the  county  aforesaid,  did,  by  agreement,  fight  in  a  public 

place,  that  is  to  say,  in  the  public  highway,  there  situate,  and  did  then 
and  there  make  an  affray,  to  the  terror  of  the  citizens  of  this  State  then 
and  there  being.  He,  therefore,  prays  that  the  said  C.  D.  and  G.  H. 
may  be  arrested  and  dealt  with  according  to  law. 

Sworn  and  subscribed  before  me,  this  1  A.  B. 

day  of ,  18—. 

L.  M.,  J.  P.     J 

form  of  Warrant  for  an  Assault. 
STATE  OF  ILLINOIS, 


COUNTY, 


ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 

Whereas,  A.  B.  has  this  day  made  complaint  in  writing,  upon  oath, 

before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said  county,  that  on 

the day  of ,  18 — ,  at ,  in  the  county  aforesaid,  C.  D. 

did  unlawfully  attempt  to  violently  strike,  beat,  and  wound  him,  the 
said  A.  B.,  with  a  cane,  then  and  there  having  the  ability  to  commit 
the  said  injury  :  » 


CHAP.  9.]  ASSAULT  AND  BATTERY.  263 

These  are,  therefore,  to  command  you  forthwith  to  arrest  the  said 
C.  D.,  and  bring  him  before  the  said  justice,  to  answer  unto  the  said 
complaint,  and  to  be  further  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  at ,  in  said 

county,  the day  of ,  18 — . 

L.  M.,  J.  P.     [SEAL.] 

Form  of  Warrant  for  Assault  and  Battery. 
STATE  or  ILLINOIS, 


COUNTY, 


ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 
Whereas,  A.  B.  has  this  day  made  complaint  in  writing,  upon  oath, 

before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said  county,  that  on 

the day  of ,  18 — ,  at ,  in  the  county  aforesaid,  C.  D. 

did  violently  assault  and  unlawfully  beat  him,  the  said  A.  B.  : 

These  are,  therefore,  to  command  you  forthwith  to  arrest  the  said 

C.  D.,  and  bring  him  before  the  said  justice,  to  answer  unto  the  said 

complaint,  and  to  be  further  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  at ,  in  the 

said  county,  the day  of ,  18 — . 

L.  M.,  J.  P.     [SEAL.] 

Form  of  Warrant  for  an  Affray. 


STATE  OF  ILLINOIS, 
COUNTY, 


>S8. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 

Whereas,  A.  B.  hath  this  day  made  complaint  in  writing,  upon  oath, 

before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said  county,  that  on 

the day  of ,  18 — ,  at ,  in  the  county  aforesaid,  C.  D. 

and  G.  H.  did,  by  agreement,  fight  in  a  public  place,  that  is  to  say,  in 
the  public  highway,  there  situate,  and  did  then  and  there  make  an 
affray,  to  the  terror  of  the  citizens  of  this  State,  then  and  there  being : 
These  are,  therefore,  to  command  you  forthwith  to  arrest  the  said 
C.  D.  and  G.  H.,  and  bring  them  before  the  said  justice,  to  answer  unto 
the  said  complaint,  and  to  be  further  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  at ,  in  the 

said  county,  the day  of ,  18 — . 

L.  M.,  J.  P.     [SEAL.] 


264  ASSAULT    AND    BATTERY.  [PART  2, 

Form  of  Recognizance  of  Defendant  to  appear  before  the  Justice,  in 
case  of  continuance  of  trial. 

STATE  OF  ILLINOIS,  \ 
COUNTY,    j~ SJ 

Be  it  remembered  that  on  this day  of ,  18 — ,  C.  D.,  of 

-,  in  the  said  county,  and  Gr.  H.,  of ,  in  the  said  county,  and 


I.  J.,  of ,  in  the  said  county,  personally  come  before  me,  L.  M., 

Esquire,  a  justice  of  the  peace  of  said  county,  and  severally  and  re- 
spectively acknowledge  themselves  to  owe  to  the  people  of  the  State 
of  Illinois,  that  is  to  say,  the  said  C.  D.,  the  sum  of  one  hundred  dol- 
lars, and  the  said  Gr.  H.  and  I.  F.,  the  sum  of  fifty  dollars  each,  to  be 
levied  of  their  respective  goods  and  chattels,  lands  and  tenements,  to 
the  use  of  the  said  people,  if  the  said  C.  D.  shall  make  default  in  the 
condition  following  : 

The  condition  of  this  recognizance  is  such  that  if  the  said  C.  D. 
shall  personally  be  and  appear  before  the  said  justice,  at  his  office,  in 

,  on  the day  of ,  18 — ,  at  a  court  then  and  there  to  be 

held,  before  the  said  justice,  for  the  trial  of  an  assault  and  battery, 
alleged  to  have  been  committed  by  the  said  C.  D.,  upon  A.  B.,  (or  if 
for  an  assault  or  an  affray,  state  it  here,)  and  to  do  and  receive  what 
shall  by  the  court  be  then  and  there  enjoined  upon  him,  and  shall  not 
depart  the  court  without  leave ;  then  this  recognizance  to  be  void,  or 
else  to  remain  in  full  force. 

Taken,  subscribed  and  acknowledged,  ")  C.  D. 

the  day  and  year  first  above  written,  be-  v  Gr.  H. 

fore  me,  L.  M.,  /.  P.       (  I.  J. 


Form  of  a  Venire. 


STATE  OF  ILLINOIS, 
COUNTY, 


>  ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County: 

We  command  you  to  summon  twelve  (or  "six,"  as  may  be  required 
by  the  accused,)  good  and  lawful  men,  qualified  to  serve  as  jurors, 
and  not  exempt  from  such  service  by  law,  and  who  are  not  in  any  wise 
related  either  to  A.  B.  or  C.  D.,  to  be  and  appear  before  L.  M.,  Esquire, 

a  justice  of  the  peace  of  the  said  county,  on  the day  of 

instant,  at  —  o'clock  in  the noon,  at  the  office  of  the  said  jus- 
tice, in ,  to  make  a  jury  for  the  trial  of  the  said  C.  D.,  for  an 


CHAP.  9.]  ASSAULT  AND  BATTERY.  265 

assault  and  battery  upon  the  said  A.  B.,  and  have  you  then  and  there 
a  panel  of  jurors  and  this  precept. 

Given  under  the  hand  and  seal  of  the  said  justice  the day 

of 18—. 

L.  M.,  /.  P.     [SEAL.] 

Form  of  Juror's  Oath  or  Affirmation. 

You  do  swear,  (or  "  you  do  solemnly,  sincerely,  and  truly  declare 
and  affirm,")  that  you  will  well  and  truly  try  this  issue  of  traverse  be- 
tween the  people  of  the  State  of  Illinois  and  C.  D.,  the  defendant,  and 
a  true  verdict  give  therein  according  to  the  evidence. 


Form  of  a  Subpoena. 


STATE  OF  ILLINOIS, 


COUNTY, 


I  ss. 


The  People  of  the  State  of  Illinois  to  E.  P.,  G.  If.,  S.  T.  and  K.  L.  : 
We  command  you,  and  every  of  you,  that  you  do  in  your  proper 
persons  appear  before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said 
county,  at  his  office  in  -  ,  in  said  county,  forthwith,  (or  "  on  the 
-  day  of  -  ,  18  —  ,  at  -  o'clock  in  the  -  noon,") 
to  testify  the  truth  according  to  your  knowledge  touching  an  informa- 
tion and  complaint  against  C.  D.,  for  an  assault  and  battery,  (or  "for 
an  assault,"  or  as  the  offense  is,}  for  which  the  said  C.  D.  is  then  and 
there  to  be  tried,  on  the  part  of  the  people,  (or  "  on  the  part  of  the 
defendant.") 

Given  under  the  hand  and  seal  of  the  said  justice,  the  -  day 


L.  M.,  /.  P.     [SEAL.] 
Form  of  Oath  of  Witness. 

You  do  swear,  that  the  evidence  you  shall  give  in  this  issue  of  tra- 
verse, between  the  people  of  the  State  of  Illinois  and  C.  D.  the  defend- 
ant, shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 

Form  of  a  Constable'  s  Oath  on  retiring  with  a  jury  to  consider  their 

verdict. 

You  do  swear  that  you  will,  to  the  utmost  of  your  ability,  keep  the 
persons  sworn  as  jurors  on  this  trial,  together  in  some  private  and  con- 


266  ASSAULT  AND   BATTERY.  [PART   2, 

venient  place,  without  meat  or  drink,  except  ordered  by  the  court ;  that 
you  will  not  suffer  any  communication,  orally  or  otherwise,  to  be  made 
to  them ;  that  you  will  not  communicate  with  them  yourself,  orally  or 
otherwise,  unless  by  order  of  the  court,  or  to  ask  them  if  they  have 
agreed  on  their  verdict,  until  they  shall  be  discharged ;  and  that  you 
will  not,  before  they  render  their  verdict,  communicate  to  any  person 
the  state  of  their  deliberations,  or  the  verdict  they  have  agreed  on. 

Form  of  Execution  to  levy  Fine  and  Costs. 

STATE  OF  ILLINOIS, 

COUNTY, 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County : 
Whereas,  upon  the  information  and  complaint  of  A.  B.,  lately  ex- 
hibited before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said  county, 
upon  oath,  against  C.  D.  for  an  assault  and  battery,  the  said  C.  D.  was 
arrested  and  tried  before  the  said  justice  and  a  jury,  and  found  guilty 
of  the  charge,  and  the  said  jury  assessed  the  fine  which  the  said  C.  D. 
should  pay,  at  the  sum  of  ten  dollars,  and  it  was  thereupon  adjudged 
and  determined  by  the  said  justice,  that  the  said  C.  D.  pay  the  fine  so 
assessed,  and,  also,  the  sum  of  three  dollars  and  ninety-four  cents 
costs : 

We  therefore  command  you  immediately  to  levy  the  said  sum  of  ten 
dollars  so  assessed,  and,  also,  the  said  sum  of  three  dollars  and  ninety- 
four  cents  costs,  by  distress  and  sale  of  the  goods  and  chattels  of  the 
said  C.  D.,  (except  such  goods  and  chattels  as  are  by  law  exempt 
in  such  cases,)  giving  twenty  days'  public  notice  of  the  day  of  sale, 
by  putting  up  written  advertisements  at  three  of  the  most  public 
places  in  the  county ;  and  do  you  return  this  precept  with  all  conve- 
nient speed  with  what  you  shall  do  thereon.  Hereof  fail  not. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

Of 18 

L.  M.,  J.  P.     [SEAL.] 

form  of  Execution  to  levy  Costs  in  case  of  Malicious  Prosecution. 

STATE  OF  ILLINOIS, 

COUNTY, 

The  People  of  the  State  of  Illinois  to  any  Cbnstable  of  said  County: 
Whereas  upon  the  information  and  complaint  of  A.  B.,  lately  ex- 
hibited before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said  county, 


CHAP.  9.]  ASSAULT  AND  BATTERY.  267 

upon  oath,  against  C.  D.,  for  an  assault  and  battery,  the  said  C.  D. 
was  arrested  and  tried  before  the  said  justice,  (or,  "and  jury")  and 
found  not  to  be  guilty  of  the  charge,  and  it  was  therefore  adjudged  and 
determined  by  the  said  justice,  that  the  said  C.  D.  be  discharged 
and  acquitted  of  the  said  charge ;  and  it  appearing  to  the  said  justice 
on  the  said  trial,  that  there  was  no  reasonable  ground  for  the  said 
prosecution,  and  that  it  was  maliciously  entered,  it  was  adjudged  and 
determined  that  the  said  A.  B.  pay  the  costs  of  said  suit,  and  judgment 
was  thereupon  entered  against  him  for  the  sum  of  seven  dollars,  the 
amount  of  said  costs : 

We  therefore  command  you  to  levy  the  said  sum  of  seven  dollars, 
costs  as  aforesaid,  by  distress  and  sale  of  the  goods  and  chattels  of  the 
said  A.  B.,  (except  such  goods  and  chattels  as  are  by  law  exempt  from 
execution,)  giving  twenty  days'  notice  of  the  day  of  sale,  by  putting 
up  written  advertisements  at  three  of  the  most  public  places  in  the 
county;  and  do  you  return  this  precept  with  all  convenient  speed, 
with  what  you  shall  do  thereon.  Hereof  fail  not. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,18—. 

L  M.,  /.  P.     [SEAL.] 

Form  of  Capias  against  the  body,  or  Mittimus. 


STATE  OF  ILLINOIS, 


COUNTY 


)is,  ) 
>•  ss. 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
and  to  the  Keeper  of  the  Common  Jail  of  the  said  County: 

Whereas  upon  the  information  and  complaint  of  A.  B.,  lately  ex- 
hibited before  L.  M.,  Esquire,  a  justice  of  the  peace  of  said  county, 
upon  oath,  against  C.  D.  for  an  assault  and  battery,  the  said  C.  D.  was 
arrested  and  tried  before  the  said  justice  and  a  jury,  and  found  guilty 
of  the  charge,  and  the  said  jury  assessed  the  fine  which  he  should  pay 
at  the  sum  of  ten  dollars ;  and  it  was  thereupon  adjudged  and  deter- 
mined by  the  said  justice,  that  the  said  C.  D.  should  pay  the  fine  so 
assessed,  and  also  the  sum  of  three  dollars  and  ninety-four  cents, 
costs  : 

And  whereas  it  appears  by  the  return  of  J.  K.,  constable,  dated  the 

day  of ,  18 — ,  that  he  hath  made  diligent  search  for, 

but  doth  not  know  of,  nor  can  find  any  goods  and  chattels  of  the  said 
C.  D.,  by  distress  and  sale  whereof  the  said  sum  of  ten  dollars  fine, 


268  ASSAULT   AND    BATTERY.  .  [PART  2, 

and  three  dollars  and  ninety-four  cents  costs,  may  be  levied  pursuant 
to  the  command  of  our  writ  of  execution  to  him  delivered  for  that 
purpose : 

We  therefore  command  you  to  apprehend  the  said  C.  D.,  and  convey 
him  to  the  common  jail  of  the  said  county,  and  deliver  him  into  the 
custody  of  the  said  keeper.  And  you  the  said  keeper  are  hereby 
required  to  receive  the  said  C.  D.  into  your  custody  in  the  said  jail, 
and  him  there  safely  keep  for  the  space  of  forty-eight  hours,  unless  the 
said  fine  and  costs  shall  be  sooner  satisfied,  or  until  he  shall  be  dis- 
charged by  due  course  of  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  the  day 

of ,  18—. 

L.  M.,  /.  P.     [SEAL.] 


CHAP.  10.]  DOCKET  ENTRIES.  269 


CHAPTER    X. 


OF    DOCKET    ENTRIES    IN   CRIMINAL  AND    SUMMARY    PRO- 
CEEDINGS, AND  FORMS  THEREOF. 

In  cases  of  assault,  assault  and  battery,  and  affrays,  the  justice  is 
required  to  enter  the  proceedings  upon  his  docket,  and  to  render 
judgment  according  to  the  finding  of  the  jury.1  And  in  cases  of 
offenses  specified  in  sections  one  hundred  and  forty-three,  one  hundred 
and  forty-four,  one  hundred  and  forty-five,  one  hundred  and  forty-six, 
and  one  hundred  and  forty-seven  of  the  Criminal  Code,  he  will  in  like 
manner  enter  the  proceedings  upon  his  docket.2  He  should  also,  when 
any  person  is  examined  before  him  on  any  criminal  charge,  enter  so 
much  of  the  proceedings  as  may  be  material,  upon  his  docket.  In 
short,  all  proceedings  had  before  him,  or  acts  done  of  a  judicial 
nature,  ought  properly  to  appear  upon  his  docket.  This  should  not 
only  be  done  for  the  benefit  of  the  parties,  but  may  operate  in  many 
instances  as  a  further  protection  to  the  justice. 

Form  of  Docket  Entry  on  the  examination  of  a  person  charged  with 
any  criminal  offense. 

STATE  OF  ILLINOIS, 
COUNTY, 

Before  L.  M.,  Justice  of  the  Peace. 

The  People       ~) 

vs.  >    Charge  of  Larceny. 

C.  D.          ) 

1855 — September  10th. — This  day  personally 
appeared  A.  B.,  who  being  duly  sworn,  says, 
that  on  the  9th  day  of  September,  instant,  at 

(1)  Rev.  Stat.  329,  See.  96.  (2)  Rev.  Stat.  177,  Sees.  149, 150. 


270  DOCKET  ENTRIES.  [PART  2, 

the  county  aforesaid,  C.  D.  did  feloniously 
steal,  take,  and  carry  away,  one  gold  watch, 
of  the  value  of  one  hundred  dollars,  the 
property  of  the  said  A.  B.  Whereupon  a 
warrant  is  issued  for  the  arrest  of  the  said 
C.  D.,  and  delivered  to  constable  E.  F.,  to 
serve. 

September  llth.  "Warra'nt  returned  by  con- 
stable E.  F.,  with  the  said  C.  D.  in  custody, 
before  me.  Gr.  H.  and  I.  K.,  sworn  as  witnesses 
and  testified  on  the  part  of  the  people.  0.  P. 
sworn  and  testified  on  the  part  of  the  prisoner; 
being  all  the  witnesses  attending. 

Upon  consideration  of  the  facts  and  cir- 
cumstances proved  by  said  witnesses,  it 
appears  to  me,  that  the  said  charge  against 
the  said  C.  D.  is  true,  and  he  is  admitted  to 
bail  in  good  and  sufficient  security  in  the 
sum  of  Jive  hundred  dollars,  which  the  said 
C.  D.  fails  to  give,  whereupon  he  is  committed 

to  the  common  jail  of  the  county  of . 

L.  M. 

The  foregoing  form  will  probably  suffice  for  the  various  occasions  of 
examinations,  by  being  varied  to  conform  to  the  facts. 

Form  of  Docket  Entry  in  case  of  assault  and  battery. 

STATE  OP  ILLINOIS,  > 
COUNTY,     j~ 

Before  L.  M.,  Justice  of  the  Peace. 

The  People       ) 

vs.  >   Assault  and  Battery. 

C.  D.  ) 

1855 — September  6th. —  Information  and  com- 
plaint of  A.  B.,  a  competent  person,  upon 
oath,  against  C.  D.,  for  an  assault  and 
battery  committed  upon  him,  the  said  A.  B. 
Warrant  issued  for  the  arrest  of  the  said 
C.  D.,  and  delivered  to  constable  E.  F.  to 
serve. 


CHAP.  10.]  DOCKET  ENTRIES.  271 

Warrant  returned  at  this  date  by  constable 
E.  F.,  executed  by  arresting  the  said  C.  D., 
who  is  now  in  custody.  Constable's  fees,  50 
cents.  The  accused  pleads  not  guilty,  and 
dispenses  with  a  jury.  A.  B.  and  J.  K. 
sworn  as  witnesses  on  the  part  of  the  people. 
Upon  hearing  the  evidence  adduced,  it  is 
adjudged  by  the  court,  that  the  accused  is 
guilty  of  the  charge  alleged  against  him,  and 
that  he  should  pay  a  fine  of  ten  dollars; 
judgment  is  therefore  rendered  against  the 
said  C.  D.  for  ten  dollars,  with  the  costs- of 

this  proceeding  herein  taxed  at . 

L.  M. 

When  the  cause  is  tried  by  jury,  the  form  of  docket  entry  in  civil 
proceedings  may  be  observed,  with  alterations  to  conform  to  the  facts. 

The  two  preceding  forms,  together  with  such  examples  as  have  been 
already  given,  will  no  doubt  suffice  in  affording  a  sufficient  illustration 
in  regard  to  docket  entries,  for  every  occasion  which  may  arise. 


272  JUSTICES'  FEES  IN  CRIMINAL  CASES.  [PART  3, 


CHAPTER  XL 

OF  JUSTICES'  FEES  IN  CRIMINAL  CASES. 

Eev.  Stat.  246,  Sec.  16.  "For  taking  each  complaint  in  writing, 
under  oath,  twenty-five  cents. 

For  taking  the  examination  of  the  accused  and  the  testimony  of  wit- 
nesses in  cases  of  felony,  and  returning  the  same  to  the  circuit  court, 
for  every  seventy-two  words,  twelve  and  a  half  cents. 

For  each  warrant,  twenty-five  cents. 

Taking  recognizance,  and  returning  the  same,  fifty  cents. 

For  each  subpo3na,  twenty-five  cents. 

Administering  each  oath,  six  and  a  fourth  cents. 

For  each  jury  warrant  in  a  trial  of  assault  and  battery,  twenty-five 
cents. 

For  entering  the  verdict  of  the  jury,  twelve  and  a  half  cents. 

For  each  order  or  judgment  thereon,  twenty-five  cents. 

For  each  mittimus,  twenty-five  cents. 

For  each  execution,  twenty-five  cents.      » 

For  entering  each  appeal,  twenty-five  cents. 

For  transcript  of  judgment  and  proceedings  in  cases  of  appeal,  fifty 
cents. 

But  in  all  cases  where  the  defendant  shall  be  acquitted,  or  otherwise 
legally  discharged  without  the  payment  of  costs,  the  justice  shall  not  be 
entitled  to  any  fees." 

In  prosecutions  in  behalf  of  the  people,  where  no  conviction  is  had, 
neither  the  State  nor  county  is  bound  to  pay  the  fees  of  officers ;  and 
where  the  defendant  is  convicted,  it  is  held  that  the  officers  must  look 
to  the  defendant's  estate  for  their  costs,  and  run  the  risk  of  losing  them, 
if  he  be  insolvent.1 

(1)  4  Scam.  163. 


ClIAP.    1.]  ATTACHMENTS   BEFORE   JUSTICES.  273 


PART    THIRD. 

OF  THE  POWERS  AND  DUTIES  OF  JUSTICES  OF  THE  PEACE 
UNDER  PARTICULAR  STATUTES. 

CHAPTER   I. 

OF  ATTACHMENTS  BEFORE  JUSTICES  OF  THE  PEACE. 

I.     OP  THE    ORDINARY   PROCEEDING   BY     ATTACHMENT   AGAINST     THE 

GOODS  AND  CHATTELS  OF  THE  DEFENDANT. 
II.   OF  ATTACHMENTS  OF  BOATS  AND  VESSELS. 

I.   OF  THE  ORDINARY  PROCEEDING  BY.  ATTACHMENT  AGAINST  THE 
GOODS  AND  CHATTELS  OF  THE  DEFENDANT. 

Rev.  Stat.  58,  Sec.  1.  "If  any  creditor,  his  agent  or  attorney, 
shall  file  an  affidavit  with  any  justice  of  the  peace  in  this  State,  setting 
forth  that  any  person  is  indebted  to  such  creditor,  in  a  sum  not  exceed- 
ing one  hundred  dollars,  and  that  such  debtor  has  departed,  or  is  about 
to  depart  from  this  State,  with  the  intention  of  having  his  effects  re- 
moved from  this  State ;  or  is  about  removing  his  property  from  this 
State,  to  the  injury  of  such  creditor  ;  or  that  such  debtor  conceals  him- 
self, or  stands  in  defiance  of  an  officer,  so  that  process  can  not  be  served 
upon  him ;  or  that  such  debtor  is  not  a  resident  of  this  State,  it  shall 
be  lawful  for  the  justice  to  grant  a  writ  of  attachment  against  the  perso- 
nal estate,  goods,  chattels,  rights,  moneys  and  effects  of  the  debtor, 
directed  to  any  constable  of  his  county,  and  returnable  within  thirty 
days  from  the  date  thereof. 

17 


274  ATTACHMENTS   BEFORE   JUSTICES.  [PART    3, 

"  Sec.  2.     The  writ  of  attachment  required  in  the  preceding  section, 
shall  be  substantially  in  the  following  form : 
STATE  OF  ILLINOIS, 


COUNTY,      f sctl 


The  people  of  the  State  of  Illinois,  to  any  constable  of  said  county, 
greeting  :  Whereas,  A.  B.,  (or  agent  or  attorney  of  A.  B.,  as  the 
case  may  be,)  hath  complained  on  oath  (or  affirmation)  before  C.  D., 
a  justice  of  the  peace  in  and  for  said  county,  that  E.  F.  is  justly  in- 
debted to  the  said  A.  B.,  in  the  amount  of  dollars,  and  oath 

(or  affirmation)  having  been  also  made  that  the  said  E.  F.  so  absconds 
or  conceals  himself,  or  stands  in  defiance  of  a  peace  officer,  authorized 
to  arrest  him  or  her,  with  civil  process,  so  that  the  ordinary  process  of 
law  can  not  be  served  on  him  (or  her,  as  the  case  may  be,)  and  the 
said  A.  B.,  having  given  bond  and  security  according  to  the  directions 
of  the  act  in  such  cases  made  and  provided;  We  therefore,  command 
you  that  you  attach  so  much  of  the  personal  estate  of  the  said  E.  F.  to 
be  found  in  your  county  as  shall  be  of  value  sufficient  to  satisfy  the 
said  debt  and  costs,  according  to  the  complaint,  and  such  personal 
estate  so  attached,  in  your  hands  to  secure,  or  so  to  provide  that  the 
same  may  be  liable  to  further  proceedings  thereon,  according  to  law, 
before  the  undersigned  justice  of  the  peace.  And  in  case  personal  pro- 
perty of  value  sufficient  can  not  be  found,  that  you  summon  all  persons 
whom  the  plaintiff  or  his  agent  shall  direct,  to  appear  before  said  jus- 
tice, on  the day  of  next,  then  and  there  to  answer 

what  may  be  objected  against  him  or  them,  when  and  where  you  shall 
make  known  how  you  executed  this  writ ;  and  have  you  then  and  there 

this  writ.     Given  under  my  hand  and  seal,  this day  of 

18—. 

C.  D.,  Justice  of  the  Peace.      Seal. 

"Sec.  3.  Upon  the  issuing  of  any  such  writ  of  attachment,  the  justice 
shall  take  .from  the  creditor,  his  agent  or  attorney,  a  bond  to  the  defen- 
dant with  good  security,  to  be  approved  by  said  justice  in  a  penalty  of 
at  least  double  the  amount  of  the  plaintiff's  claim,  conditioned  that 
said  creditor  will  pay  to  the  defendant  and  to  all  others  interested  in 
such  attachment,  or  the  proceedings  to  grow  out  of  it,  all  damages  and 
costs  which  may  be  sustained  by  reason  of  the  wrongful  suing  out 
of  said  attachment. 

"  Sec.  4.  The  condition  of  the  bond  required  in  the  preceding  sec- 
tion, shall  be  substantially  as  follows  : 


ClIAI>.  1.]          ATTACHMENT    AGAINST    GOODS    AND    CHATTELS.  275 

"  The  condition  of  the  above  obligation  is  such,  that  whereas  the  above 
bounden hath,  on  the  day  of  tha  date  hereof,  prayed  an  attach- 
ment at  the  suit  of ,  against  the  personal  estate  of  the  above 

named ,  for  the  sum  of ,  and  the  same  being  about  to 

be  sued  out,  returnable  on  the day  of ,  before  (said  justice.) 

Now  if  the  said ,  shall  prosecute  his  suit  with  effect,  or  in  case 

of  failure  therein,  shall  well  and  truly  pay  and  satisfy  the  said , 

all  such  costs  in  such  suit,  and  such  damages  as  the  said may 

sustain  by  reason  of  wrongfully  suing  out  the  said  attachment,  then  the 
above  obligation  to  be  void,  else  to  remain  in  full  force  and  virtue. 

Witness  our  hands  and  seals,  this day  of ,  18  — . 

Seal. 
Seal. 

"  Sec.  5.  The  constable  to  whom  any  attachment  may  be  delivered, 
shall,  without  delay,  execute  the  same  by  levying  on  the  personal  pro- 
perty of  the  defendant,  of  value  sufficient  to  satisfy  the  debt  or 
damages  claimed  to  be  due,  and  all  costs  attending  the  collection  of  the 
same ;  he  shall  also  read  the  same  to  the  defendant,  if  the  defendant 
can  be  found  in  the  county,  and  make  return  thereof,  stating  how  he 
has  executed  the  same.  If  the  defendant,  or  any  other  person  for  him, 
shall  be  in  the  act  of  removing  such  personal  property,  the  officer  may 
pursue  and  take  the  same,  in  any  county  in  this  State,  and  convey  the 
same  to  the  county  from  which  such  attachment  issued. 

"  Sec.  6.  No  attachment  shall  be  abated  or  dismissed  for  want  of 
form,  if  the  essential  matters  required  in  this  chapter  be  substantially 
set  forth ;  and  justices  of  the  peace  shall  allow  any  amendment  to  be 
made,  of  any  affidavit,  writ,  return  or  bond,  or  allow  a  new  affidavit 
or  bond  to  be  filed,  which  may  be  necessary  to  obviate  objections  to  the 
same  ;  and  in  cases  of  appeals  to  the  circuit  courts,  the  courts  shall 
allow  amendments  as  aforesaid.  And  in  case  a  plea  in  abatement, 
traversing  the  facts  set  forth  in  the  affidavit,  shall  be  filed,  and  if,  on  a 
trial  to  be  had  thereon,  the  issue  be  found  for  the  defendant,  the  attach- 
ment shall  be  quashed. 

"  Sec.  7.  Upon  the  return  of  any  attachment  issued  J&y  a  justice  of 
the  peace,  if  it  shall  appear  that  the  defendant  has  been  personally 
served  with  the  same  ;  or  if  such  defendant  shall  appear  without  such 
service,  the  justice  shall  proceed  to  hear  and  determine  the  cause,  as  in 
cases  of  proceeding  by  summons.  But  if  it  does  not  appear  that  the 
defendant  has  been  served,  and  no  appearance  be  entered  by  the  defen- 
dant as  aforesaid,  the  justice  shall  continue  the  case  ten  days,  and  shall 


276  ATTACHMENT   AGAINST    GOODS   AND   CHATTELS.  [PART  3, 

immediately  prepare  a  notice  to  be  posted  up  at  three  public  places  in 
the  neighborhood  of  the  justice,  directed  to  the  defendant,  and  stating 
the  fact,  that  an  attachment  had  been  issued,  and  at  whose  instance 
the  amount  claimed  to  be  due,  and  the  time  and  place  of  trial ;  and 
also  stating  that  unless  the  said  defendant  shall  appear  at  the  time  and 
place  fixed  for  trial,  judgment  will  be  entered  by  default,  and  the 
property  attached  ordered  to  be  sold  to  satisfy  the  same ;  which  notice 
shall  be  delivered  to  the  constable,  who  shall  post  three  copies  of  the 
same  at  three  public  places  in  the  neighborhood  of  the  justice,  at  least 
eight  days  before  the  day  set  for  trial ;  and  on  or  before  that  day,  he 
shall  return  the  notice  delivered  to  him  by  the  justice,  with  an  endorse- 
ment threon,  stating  the  time  when  and  the  place  where  he  posted  copies 
as  herein  required. 

"  Sec.  8.  When  notices  shall  be  given  of  any  proceedings  by 
attachment,  as  required  by  the  seventh  section  of  this  chapter,  the 
justice  shall  on  the  day  set  for  trial  of  the  cause,  proceed  to  hear  and 
determine  the  same,  as  though  process  had  been  personally  served  upon 
the  defendant,  and  if  judgment  be  given  against  the  defendant,  shall 
order  a  sale  of  the  property  attached,  or  so  much  thereof,  as  will  satis- 
fy the  judgment  and  all  costs  of  suit.  But  if  the  constable  shall  have 
failed  to  post  the  notices  as  herein  required,  the  justice  shall  again  con- 
tinue the  cause,  and  require  notices  to  be  posted  as  aforesaid,  previous 
to  any  trial  of  the  cause. 

"  Sec.  9.  When  any  constable  shall  be  unable  to  find  personal 
property  of  any  defendant,  sufficient  to  satisfy  any  attachments  issued 
under  the  provisions  of  this  chapter,  he  is  hereby  required  to  notify  any 
and  all  persons  within  this  county,  whom  the  creditor  shall  designate 
as  having  any  property,  effects  or  choses  in  action,  in  his  possession  or 
power,  belonging  to  the  defendant,  or  who  are  in  anywise  indebted  to 
such  defendant,  to  appear  before  such  justice  on  the  return  day  of  the 
attachment,  then  and  there  to  answer  upon  oath  what  amount  he  or  she 
is  indebted  to  the  defendant  in  the  attachment,  or  what  property,  effects 
or  choses  in  action,  he  or  she  had  in  his  or  her  possession  or  power  at 
the  time  of  serving  the  attachment.  The  person  or  persons  so  sum- 
moned, shall  be  considered  as  garnishees,  and  the  constable  shall  state 
in  his  return,  the  names  of  all  persons  so  summoned,  and  the  date  of 
service  on  each. 

"  Sec.  10.  When  an  attachment  shall  be  returned  executed  upon 
any  person,  as  garnishee,  the  justice  shall  make  an  entry  upon  the 
record  of  his  proceedings  in  the  cause,  stating  the  name  of  each  per- 


CHAP.  1.]       ATTACHMENT    AGAINST    GOODS    AND    CHATTELS.  277 

son  summoned,  and  continue  the  case  as  to  such  garnishee,  and  shall 
proceed  with  the  cause  as  against  the  defendant,  in  the  attachment,  as 
though  the  attachment  had  been  levied  on  personal  property. 

"  Sec.  11.  When  judgment  is  entered  by  a  justice  of  the  peace, 
against  a  defendant  in  attachment,  and  any  person  or  persons  have  been 
summoned  as  garnishee  in  the  case,  it  shall  be  the  duty  of  the  justice 
to  issue  a  summons  against  each  person  so  summoned,  requiring  him  or 
her  to  appear  before  the  justice,  at  a  time  'and  place  to  be  fixed  in  the 
summons,  not  less  than  five  nor  more  than  fifteen  days  from  the  date 
thereof,  and  show  cause,  if  any  he  or  she  has,  why  a  judgment  shall  not 
be  entered  against  him  or  her,  for  the  amount  of  the  judgment  and  costs 
against  the  defendant  in  attachment,  which  summons  shall  be  served 
and  returned  by  some  constable  of  the  county,  and  on  the  return  day 
thereof,  if  any  person  so  summoned  shall  fail  to  appear,  the  justice  shall 
enter  judgment  against  the  person  so  failing  to  appear,  for  the  amount 
of  the  judgment  obtained  against  the  defendant  in  attachment,  and  ex- 
ecution shall  be  issued  thereon,  as  in  other  cases. 

"  Sec.  12.  If  any  garnishee  shall  appear  at  the  time  and  place  re- 
quired by  the  constable,  as  aforesaid,  and  shall  upon  oath  deny  all 
indebtedness  to  the  defendant  in  the  attachment,  and  deny  having  any 
property  or  effects,  or  choses  in  action  in  his  possession  or  power,  be- 
longing to  such  defendant,  the  justice  shall  forth  with  discharge  him,  un- 
less the  plaintiff  in  the  attachment  shall  satisfy  the  justice  by  other  tes- 
timony, that  the  garnishee  was  indebted  to  the  defendant  in  the  attach- 
ment, or  had  property,  effects  or  choses  in  action  in  his  possession  or 
power,  at  the  time  he  was  garnisheed,  in  which  case  the  justice  shall  give 
judgment  in  the  premises,  according  to  the  right  and  justice  of  the 
cause,  and  issue  execution  as  in  other  cases. 

"  Sec.  13.  Judgments  obtained  under  the  provisions  of  this  chapter, 
where  the  defendant  has  been  personally 'served  with  process,  or  shall 
have  appeared  to  the  action,  shall  have  the  same  force  and  effect,  as 
judgments  obtained  upon  a  summons ;  but  the  property  attached  shall 
be  sold  before  any  execution  is  issued  upon  such  judgment,  and  if  such 
property  shall  not  sell  for  a  sum  sufficient  to  pay  the  judgment  and 
costs,  execution  may  be  issued  to  collect  the  balance. 

"  Sec.  14.  Judgments  obtained  under  the  provisions  of  this  chap- 
ter, when  the  defendant  has  not  been  personally  served  with  process, 
and  no  appearance  being  entered,  shall  only  authorize  a  sale  of  the  prop- 
erty levied  upon,  and  proceedings  against  garnishees  to  collect  the  amount 
thereof.  Defendants  in  attachments  issued  under  the  provisions  of  this 


278         ATTACHMENT  AGAINST  GOODS  AND  CHATTELS.    [PART  3, 

chapter,  where  property  may  be  levied  upon,  or  the  person  in  whose 
possession  the  property  may  be  found,  may  retain  possession  of  such 
property  upon  executing  a  bond  to  the  plaintiff  in  the  attachment,  with 
good  security  in  a  penalty  of  double  the  amount  claimed  by  the  attach- 
ment, conditioned  that  the  property  shall  be  delivered  to  any  constable 
of  the  county,  whenever  demanded,  to  be  sold  in  satisfaction  of  any 
judgment  which  may  be  Obtained  in  the  attachment  suit,  or  in  case  the 
property  is  not  delivered,  that  the  obligors  will  pay  and  satisfy  the  said 
judgment  and  costs  ;  and  when  a  bond  shall  be  executed,  the  constable 
shall  return  the  same  with  the  attachment,  and  upon  a  breach  of  any 
condition  thereof,  the  plaintiff  shall  have  a  right  to  prosecute  suit  thereon, 
and  to  recover  the  amount  due  upon  his  judgment  and  costs. 

"Sec.  15.  In  all  cases  arising  under  the  provisions  of  this  chapter, 
when  two  or  more  attachments  shall  be  levied  on  the  same  property,  or 
be  proved  on  the  same  garnishee,  and  judgment  shall  be  entered  on  the 
same  day,  the  proceeds  of  the  property  attached,  or  the  money  obtained 
from  gamishees,  shall  be  divided  among  the  several  plaintiffs  in  at£aeh- 
ment,  according  to  the  amount  of  their  judgments  respectively :  provided, 
that,  when  the  property  sought  to  be  attached  shall  have  been  removed 
from  the  county  in  which  the  attachment  issued,  and  shall  be  overtaken 
and  returned  to  such  county,  the  claim  of  such  attaching  creditor  shall 
have  priority  over  attachments  subsequently  issued. 

"Sec.  16.  Persons  summoned  as  gamishees  may  set  up  the  same 
defense  in  trials  under  this  chapter,  as  they  might  against  the  defendant 
in  the  attachment ;  and  may,  in  like  manner,  make  any  set-off  against 
the  defendant,  whether  the  same  be  due  or  not. 

"  Sec.  17.  Whenever  judgment  shall  have  been  rendered  against 
any  garnishee,  and  it  shall  appear  that  the  debt  from  him  to  the  defend- 
ant in  the  attachment,  is  not  yet  due,  execution  shall  not  issue  against 
him  until  twenty  days  after  the  same  shall  become  due  :  provided,  the 
plaintiff  may  swear  out  execution,  as  in  other  cases,  after  the  said  debt 
becomes  due. 

"  Sec.  18.  Any  garnishee  having  effects  of  the  defendant  in  his 
hands,  may,  by  delivering  the  same,  or  any  part  thereof,  to  the  consta- 
ble, and  taking  his  receipt  therefor,  be  discharged  from  his  liability  re- 
specting such  effects  so  delivered. 

"  Sec.  19.  When  two  or  more  persons  not  residing  in  this  State,  are 
jointly  indebted,  either  as  joint  obligors,  partners,  or  otherwise,  the  writ 
or  writs  of  attachment  may  be  issued  against  the  separate  and  joint 
estate  of  such  debtors,  or  any  of  them,  either  by  their  proper  names, 


CHAP.  1.]       ATTACHMENT   AGAINST   GOODS   AND   CHATTELS.  279 

or  by,  or  in  the  name  or  style  of  the  partnership,  or  by  whatever  other 
name  or  names  such  joint  debtors  shall  be  generally  reputed,  known  or 
distinguished  in  this  State,  or  against  the  heirs,  executors  or  adminis- 
trators of  them,  or  either  of  them ;  and  the  goods,  chattels,  rights, 
credits  and  effects  of  such  debtors,  or  either  or  any  of  them,  shall  be 
liable  to  be  seized  and  taken  for  the  satisfaction  of  any  just  debt  or  other 
legal  demand,  and  may  be  sold  to  satisfy  the  same. 

"  Sec.  20.  The  right  of  property  may  be  tried,  and  appeals  taken 
in  all  cases  arising  under  this  chapter,  in  the  same  manner  as  when 
property  is  taken  on  execution  or  judgment  rendered  in  ordinary  cases. 

"  Sec.  21.  The  affidavit  required  in  the  first  section  of  this  chapter, 
may  be  sworn  to  in  the  manner  prescribed  in  section  thirty-two  of  chap- 
er  nine  of  the  revised  statutes. 

"  Sec.  22.  This  chapter  shall  be  construed  in  all  courts  in  the 
most  liberal  manner  for  the  detection  of  fraud. 

"Sec.  23.  The  provisions  of  chapter  one  of  the  revised  statutes 
shall  apply  as  well  to  suits  in  attachment,  as  to  other  cases." 

Form  of  Affidavit  for  Attachment. 

STATE  OP  ILLINOIS,  ") 
Cook  COUNTY,     ) 

A.  B.,  of  said  county,  being  duly  sworn,  doth  depose  and  say,  that  C. 
D.,  against  whom  the  said  A.  B.  is  about  to  sue  out  an  attachment,  is  justly 
indebted  to  him  in  a  sum  not  exceeding  one  hundred  dollars,  to  wit,  the 
sum  of  twenty-five  dollars ;  and  that  the  said  C.  D.  has  departed  from 
this  State,  (or  "is  about  to  depart  from  this  State,  with  the  intention  of 
having  his  effects  removed  from  this  State ;"  or  "  is  about  removing 
his  property  from  this  State  to  the  injury  of  such  creditor;"  or  "that 
such  debtor  conceals  himself,  or  stands  in  defiance  of  an  officer,  so 
that  process  cannot  be  served  upon  him ;"  or  "  that  such  debtor  is  not 
a  resident  of  this  State.") 

Subscribed  and  sworn  to  before  |  A.  B. 

me,  this  —  day  of — ,  A.  D.  18 — .  V 
BENJAMIN  COOL,  J.  P.     J 

Form  of  Attachment  Bond. 

Know  all  men  by  these  presents,  that  we  A.  B.  and  C.  D.  are  held  and 

firmly  bound  unto  E.  F.  in  the  penal  sum  of dollars,  (insert  at  least 

double  the  amount  of  the  plaintiff ' s  claim,')  for  the  payment  of  whick.: 


280  ATTACHMENT   AGAINST   GOODS   AND   CHATTELS.         [PART  3, 

well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 

The  condition  of  the  above  obligation  is  such  that,  (conclude  accord- 
ing to  the  form  prescribed  by  the  statute,  see  ante,  Page  274,  Sec.  4.) 

Approved  by  me,  this day  1 

of ,  A.  D.  18-.  £  B; 

BENJAMIN  COOL,  J.  P.     J 

Writ  of  attachment.  For  form  of  the  writ  of  attachment,  see  Page 
274,  Sec.  2,  being  the  same  as  prescribed  by  the  statute. 

Form  of  Attachment  Notice,  when  defendant  is  not  personally  served. 

In  Justice's  Court. 
A.  B.         ) 
vs.  ^ 

C.  D.         ) 

To  the  above  named  defendant  : 

You  are  hereby  notified  that  an  attachment  has  been  issued  by  the 

undersigned,  a  justice  of  the  peace  in  and  for  the  county  of  ,   at 

the  instance  of  A.  B.,  the  above  named  plaintiff,  against  your  personal 
property ;  that  the  said  attachment  was  issued  for  the  sum  of  fifty  dol- 
lars, which  amount  the  said  plaintiff  claims  to  be  due  to  him  from  you; 

that  the  cause  will  be  tried  before  me  at  my  office  in  ,   in  said 

county,  on  the day  of ,  and  that,  unless  you  shall  appear  at 

the  time  and  place  fixed  for  trial,  judgment  will  be  entered  by  default, 
and  the  property  attached  ordered  to  be  sold  to  satisfy  the  same. 

Dated  this day  of ,  18—.  L.  M., 

Justice  of  the  Peace. 

Form  of  Summons  for   Garnishee  who  does  not  appear  on  return 
day  of  attachment. 

STATE  OF  ILLINOIS,  ) 
Cook  COUNTY,      j  ss' 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 

GREETING  : 

Whereas  A.  B.  recovered  a  judgment  in  attachment  before  the  under- 
signed, justice  of  the  peace  of  said  county,  against  C.  D.,  and  whereas 
R.  T.  was  duly  served  with  said  attachment  as  garnishee,  and  has  not 
made  answer  therein ;  you  are  therefore  hereby  commanded  to  summon 


CHAP.  1.]  ATTACHMENTS    OF    BOATS    AND    VESSELS.  281 

the  said  R.  T.,  to  appear  before  me  at  my  office  in  North  Chicago,  on 

the  day  of  ,  A.  D.  185-,  at o'clock,  —  M.,  to 

show  cause,  if  any  he  have,  why  judgment  shall  not  be  entered  against 

him  for  dollars  and cents,  the  amount   of  said  judgment 

and  costs  against  the  said  defendant  in  attachment.     Hereof  make  due 
service  and  return  as  the  law  directs. 

Given  under  my  hand  and  seal  this day  of ,  A.  D.  18 5-. 

THOS.  G.  PRENDERQAST,  J.  P.     [SEAL.] 


II.     OF   ATTACHMENTS   OF   BOATS   AND  VESSELS. 

Rev.  Stat.  71,  Sec.  1.  "  Boats  and  vessels  of  all  descriptions,  built, 
repaired  or  equipped,  or  running  upon  any  of  the  navigable  waters 
within  the  jurisdiction  of  this  State,  shall  be  liable  for  all  debts  contract- 
ed by  the  owner  or  owners,  masters,  supercargoes  or  consignees  thereof, 
on  account  of  all  work  done,  supplies  or  materials  furnished  by  mechanics, 
tradesmen  and  others,  for,  on  account  of,  or  towards  the  building, 
repairing,  fitting,  furnishing  or  equipping  such  boats  and  vessels,  their 
engines,  machinery,  sails,  rigging,  tackle,  apparel  and  furniture ;  and 
such  debts  shall  have  the  preference  of  all  other  debts  due  from  the 
owners,  or  proprietors,  except  the  wages  of  mariners,  boatmen  and 
others,  employed  in  the  service  of  such  boats  and  vessels,  which  shall 
first  be  paid. 

"  Sec.  2.  Any  person  having  a  demand,  contracted  as  before  men- 
tioned, against  any  such  boat  or  vessel,  may  have  an  attachment  to  be 
issued  out  of  any  court,  or  by  any  justice  of  the  peace  having  juris- 
diction thereof  in  any  county  in  this  State  in  which  such  boat  or 
vessel  may  be  found,  either  against  the  owner  or  owners  by  their 
proper  names,  or  by  the  name  and  style  of  their  copartnership,  if 
known,  otherwise  against  such  boat  or  vessel,  by  her  name  or  de- 
scription only,  authorizing  and  directing  the  seizure  and  detention 
of  the  same,  with  her  engine,  machinery,  sails,  rigging,  tackle, 
apparel  and  furniture,  .by  the  sheriff  or  constable,  upon  affidavit 
being  made  of  the  justice  of  such  demand,  and  bond  given  by  the 
plaintiff  as  in  other  cases  of  attachment :  Provided,  That  in  all  cases 
where  such  proceedings  are  instituted  against  such  boat  or  vessel 
by  her  name  and  description  only,  the  bond  to  be  given  by  the 
plaintiff,  shall  be  made  payable  to  the  people  of  the  State  of  Illi- 


282  ATTACHMENTS   OP   BOATS   AND   VESSELS.  [PART  3, 

nois,  but  for  the  use  and  benefit  of  the  owner  or  owners  of  such  boat 
or  vessel,  who  may  institute  a  suit  thereon,  if  damages  be  occa- 
sioned by  the  issuing  of  such  attachment,  and  have  recovery  thereon, 
in,  the  same  manner  as  if  said  bond  had  been  given  to  such  person 
or  persons  by  their  proper  names,  or  in  the  name  and  style  of  their 
copartnership. 

"  Sec.  3.  Upon  the  return  of  such  attachment,  the  person  or  persons 
having  demands  of  the  description  aforesaid,  and  for  whose  benefit 
such  attachment  was  issued,  shall  file  a  written  declaration  or  state- 
ment, against  such  boat  or  vessel  by  her  name  or  description,  or 
against  the  owner  or  owners,  if  known  as  aforesaid,  briefly  reciting 
the  nature  of  the  demand,  whether  for  work  done,  or  materials,  fire- 
wood, or  supplies  of  provisions  furnished ;  and  whether  at  the  re- 
quest of  the  owner,  master,  supercargo  or  consignee  of  such  boat  or 
vessel,  and  that  such  demand  remains  unpaid  ,annexing  to  such  declara- 
tion or  statement,  a  bill  of  the  particulars  constituting  such  demand, 
in  separate  and  distinct  items ;  and  the  like  proceedings  shall  be 
had  in  all  other  respects,  and  the  like  judgment  and  execution  as 
in  other  cases  of  attachment. 

"  Sec.  4.  All  engineers,  pilots,  mariners,  boatmen  and  others 
employed  in  any  capacity,  in  or  about  the  service  of  any  such  boat  or 
vessel,  who  may  be  entitled  to  arrearages  of  wages  in  consequence  of 
such  service,  may  proceed  to  collect  such  wages  under  the  provisions 
of  this  chapter,  and  shall  be  entitled  to  all  the  benefits  hereof. 

"  Sec.  5.  If  the  owner  or  owners,  master,  supercargo  or  consignee, 
of  any  such  boat  or  vessel,  seized  by  attachment  as  aforesaid,  shall  at 
any  time  before  final  judgment,  give  bond  to  the  plaintiff,  with  security 
to  be  approved  by  the  clerk  of  the  circuit  court,  or  by  the  judge  in 
term  tune,  (or  justice  of  the  peace,  as  the  case  may  be,)  in  double  the 
amount  of  the  demand  sued  for,  and  a  sufficiency  to  discharge  all  costs 
which  may  accrue  thereon,  conditioned  to  pay  and  satisfy  such  judg- 
ment as  the  court  (or  justice  of  the  peace,)  may  render  against  such 
boat  or  vessel  or  defendant  party,  together  with  the  costs  of  suit,  then 
such  boat  or  vessel  shall  be  forthwith  discharged  from  such  attachment, 
seizure  and  detention ;  but  shall  nevertheless  be  liable  to  be  taken  and 
sold  on  any  execution  to  be  issued  on  such  judgment,  or  upon  the 
judgment  which  may  be  rendered  at  any  time  on  the  bond  required  to 
be  given  by  the  defendant  party  as  aforesaid. 

"  Sec.  6.  No  creditor  shall  be  allowed  to  enforce  the  lien  created 
under  the  provisions  of  this  chapter,  as  against,  or  to  the  prejudice  of 


CHAP.   1.]  ATTACHMENTS    OF    BOATS    AND    VESSELS.  283 

any  other  creditor,  or  subsequent  incumbrancer,  or  bonafide  purchaser, 
unless  suit  be  instituted  to  enforce  such  lien  as  provided  in  this  chapter, 
within  three  months  after  the  indebtedness  accrues  or  becomes  due, 
according  to  the  terms  of  the  contract." 

As  will  be  seen  by  section  3  of  the  preceding  chapter  of  the  statute, 
the  like  proceedings  will  be  had  in  all  other  respects  from  those  pointed 
out  by  said  chapter,  as  in  other  cases  of  attachment ;  therefore  some  of 
the  forms  heretofore  given  in  cases  of  attachment,  may  be  used  in  pro- 
ceeding under  this  chapter ;  and  which  it  has  been  thought  unnecessary 
to  repeat  in  the  following  list  of  forms. 

Form  of  Affidavit  for  an  Attachment  against  a  boat  or  vessel. 


STATE  OF  ILLINOIS,  "> 
COUNTY,     \ 


ss. 


C.  D.  of ,  in  said  county,  being  duly  sworn,  says  that  on 

the day  of ,  18 — ,  at ,  in  said  county,  he  made 

a  contract  with  E.  F.,  then  the  master  of  the  steamboat ,  to 

furnish  for  the  said  boat  certain  materials  towards  repairing  the  said 
boat,  and  in  pursuance  of  said  contract,  did  furnish  the  same,  and  that 
the  said  master  contracted  and  agreed  on  his  part  to  pay  him  therefor 

the  sum  of dollars,  which  said  sum  is  still  due  and  unpaid  ; 

and  that  he  does  not  know  whether  the  said  boat  is  owned  by  co-part- 
ners, nor  does  he  know  who  are  the  owners  thereof.  He  therefore 
prays  an  attachment  against  said  steamboat  by  her  name,  authorizing 
and  directing  the  seizure  and  detention  of  the  same,  with  her  engine, 
machinery,  apparel,  and  furniture. 

Subscribed  and  sworn  to  before  me,  C.  D. 

L.  M.,  a  justice  of  the  peace  of  said 

county,  this day  of ,  18 — . 

L.  M.,  J.  P. 

Form  of  Bond  for  an  Attachment  against  a  boat  or  other  vessel. 

Know  all  men  by  these  presents,  that  we,  C.  D.  and  E.  F.,  of  the 

county  of ,  and  the  State  of  Illinois,  are  held  and  firmly  bound 

unto  the  people  of  the  State  of  Illinois,  for  the  use  and  benefit  of  the 

owner  or  owners  of  the  steamboat ,  in  the  sum  of  (insert  double 

the  sum  for  which  the  complaint  is  made,}  to  be  paid  to  said  people 
of  the  State  of  Illinois  for  the  use  aforesaid  ;  to  which  payment  well 


284  ATTACHMENTS    OF    BOATS    AND   VESSELS.  [PART  3, 

and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this day  of ,  18 — . 

Whereas,  the  above  bounden  C.  D.  hath  on  the  day  of  the  date 
hereof,  prayed  an  attachment  in  favor  of  the  said  C.  D.,  against  the 

steamboat ,  with  her  engine,  machinery,  apparel,  and  furniture, 

the  owners  of  which  are  unknown,  for  the  sum  of  dollars, 

and  the  same  being  about  to  be  sued  out,  returnable  on  the  

day  of ,  instant,  (or  "  next,")  before  L.  M.,  a  justice  of  the  peace 

of county : 

Now  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 
said  C.  D.  shall  prosecute  his  suit  with  effect,  or  in  case  of  failure 
therein,  shall  well  and  truly  pay  and  satisfy  all  such  costs  in  said  suit, 
and  such  damages  as  shall  be  awarded  against  the  said  C.  D.,  his  heirs, 
executors,  or  administrators,  in  any  suit  or  suits  which  may  hereafter 
be  brought  for  wrongfully  suing  out  the  said  attachment,  then  the 
above  obligation  to  be  void,  or  otherwise  to  remain  in  full  force  and 
effect. 

Sealed  and  delivered  in  the     ^  C.  D.     [SEAL.] 

presence  of  E   F      [SEAL  -j 

L.  M. 

Form  of  Attachment  against  a  boat  or  vessel. 

STATE  OF  ILLINOIS,  ") 
COUNTY,      ) 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : — 

Whereas,  A.  B.  hath  this  day  complained  on  oath,  that,  on  the 

day  of  ,  18 — ,  he  made  a  contract  with  C.  D.,  then  the  master 

of  the  steamboat ,  to  furnish  for  the  said  boat  certain  materials 

towards  repairing  the  said  boat,  and,  in  pursuance  of  said  contract,  did 
furnish  the  same  ;  and  that  the  said  master  contracted  and  agreed  on 

his  part,  to  pay  him  therefor  the  sum  of dollars,  which  said  sum 

is  still  due  and  unpaid;  and  that  he  did  not  know  whether  the  said  boat 
was  owned  by  co-partners,  nor  did  he  know  who  were  the  owners  thereof; 
and,  whereas  the  said  A.  B.  thereupon  made  application  to  me,  the  un- 
dersigned, a  justice  of  the  peace  of  said  county,  for  an  attachment  for 
said  sum  of dollars,  against  said  steamboat,  by  her  name,  authori- 
zing and  directing  the  seizure  and  detention  of  the  same,  with  her  en- 


CHAP.  1.]  ATTACHMENTS    OF    BOATS   AND   VESSELS.  285 

gine,  machinery,  apparel,  and  furniture,  and  gave  bond  and  security 
according  to  the  directions  of  the  statute  in  such  case  made  and  pro- 
vided : 

We,  therefore,  command  you  that  you  attach  the  said  steamboat 

,  with  her  engine,  machinery,  apparel  and  furniture,  if  to  be 

found  in  your  county,  and  detain  the  same,  so  that  they  may  be  liable 
to  further  proceedings  thereon  according  to  law,  before  the  undersigned, 

a  justice  of  the  peace,  at  his  office  in ,  in  said  county,  on  the 

day  of instant,  (or  "  next,")  at o'clock  in  the noon, 

when  and  where  you  shall  make  known  to  the  said  justice  of  the  peace 
how  you  have  executed  this  writ ;  and  have  you  then  and  there  this 
precept. 

Given  under  the  hand  and  seal  of  said  justice,  this day  of 

,  A.  D.  18—. 

L.  M.,  J.  P.     [SEAL.] 

Form  of  Affidavit  against  the  owners  of  a  vessel. 

STATE  OF  ILLINOIS, 
COUNTY, 

A.  B.,  of ,  in  said  county;  being  duly  sworn,  deposes  and 

says,  that  C.  D.,  E.  F.  and  G.  H.,  the  owners  of  the  schooner , 

are  justly  indebted  to  him  in  the  sum  of dollars,  for  work  done 

upon  the  said  schooner ,  and  for  materials  furnished  for  the 

same,  by  this  deponent,  at  the  request  of  I.  J.,  the  master  of  the  said 
schooner. 

Subscribed  and  sworn  to  before  me,     |  A.  B. 

L.  M.,  a  justice  of  the  peace  of  said 

county,  this day  of ,  18 — . 

L.  M.,  J.  P. 

Form  of  Bond  for  an  Attachment  against  the  owners  of  a  vessel. 

Know  all  men  by  these  presents,  that  we,  C.  D.  and  K.  L.,  of  the 
county  of  Lake  and  State  of  Illinois,  are  held  and  firmly  bound  unto 
E.  F.,  G.  H.  and  I.  J.  in  the  sum  of  (insert  double  the  sum  for  which 
the  complaint  is  made,)  to  be  paid  to  the  said  E.  F.,  G.  H.  and  I.  J., 
their  executors,  administrators  or  assigns,  to  which  payment,  well  and 
truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and  adminis- 
trators, jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  this day  of ,  18 — . 


286  ATTACHMENTS    OF    BOATS    AND   VESSELS.  [PART  3, 

Whereas,  the  above  bounden  C.  D.  hath,  on  the  day  of  the  date 
hereof,  prayed  for  an  attachment  in  favor  of  C.  D.,  against  the  said 
E.  F.,  G.  H.  and  I.  J.,  for  the  sum  of  -  dollars,  authorizing  and 
directing  the  seizure  and  detention  of  the  schooner  -  ,  with  her 
sails,  rigging,  tackle,  apparel  and  furniture,  and  the  same  being  about 
to  be  sued  out,  returnable  on  the  -  day  of  -  instant,  (or 
"  next,")  before  L.  M.,  a  justice  of  the  peace  of  the  county  of  Lake  : 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 
said  C.  D.  shall  prosecute  his  suit  with  effect,  or  in  case  of  failure 
therein,  shall  well  and  truly  pay  and  satisfy  to  the  said  E.  F.,  G.  H.  I 
and  I.  J.,  all  such  costs  in  said  suit,  and  such  damages  as  shall  be 
awarded  against  the  said  C.  D.,  his  heirs,  executors,  or  administrators, 
in  any  suit  or  suits  which  may  hereafter  be  brought  for  wrongfully  suing 
out  the  said  Attachment,  then  the  above  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  effect. 

Sealed  and  delivered  in  the      ~\  C.  D.     [SEAL.] 

presence  of  I  K.  L.     [SEAL.] 


Form  of  Attachment  against  the  owners  of  a  boat  or  vessel. 


*., 

oil-  i* 

COUNTY, 


STATE  OF  ILLINOIS,  )  '  '  •    J^ 

,    ]"  s{ 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 

GREETING  :  — 

Whereas,  C.  D.  hath  this  day  complained,  on  oath,  that  E.  F.,  G.  H. 
and  I.  J.,  the  owners  of  the  schooner  -  ,  were  justly  indebted  to 
him  in  the  sum  of  -  dollars,  for  work  done  upon  said  schooner 

-  ,  and  for  materials  furnished  for  the  same  by  this  deponent,  at 
the  request  of  K.  L.,  the  master  of  said  schooner  : 

We  therefore  command  you,  that  you  attach  the  said  schooner,  with 
her  sails,  rigging,  tackle,  apparel,  and  furniture,  if  to  be  found  in  your 
county,  and  detain  the  same,  so  that  they  may  be  liable  to  further 
proceedings  thereon  according  to  law,  before  the  undersigned,  a  justice 
of  the  peace,  on  the  -  day  of  -  ,  instant,  (or  "next,")  at 

-  o'clock  in  the  -  noon,  at  his  office  in  --  ,  in  said 
county,  when  and  where  you  shall  make  known  to  the  said  justice  of 
the  peace,  how  you  have  executed  this  writ.     And  have  you  then  and 
there  this  precept. 


ClIAP.   1.]  ATTACHMENTS    OF    BOATS   AND    VESSELS.  287 

Given  under  my  hand  and  seal  at  my  office  in ,  in  said 

county,  this day  of ,  A.  D.  18 — . 

L.  M.,  J.  P.     [SEAL.] 

Form  of  Declaration  or  Statement  in  Attachment  against  boats  or 

vessels. 


STATE  OF  ILLINOIS, 
COUNTY 


fOIS,  ) 

Y,  rs- 


Before  L.  M.,  a  justice  of  the  peace  of  said  county  : 

C.  D.  J 

vs.  >  Attachment. 

The  steamboat ) 

The  steamboat was  attached  in  this  case  at  the  suit  of  C.  D., 

the  plaintiff,  and  thereupon  the  said  plaintiff  complains  of  said  steam- 
boat, for  that  whereas,  on  the day  of ,  18 — ,  at  said 

county,  the  said  steamboat  was  indebted  to  the  plaintiff  in  the  sum 

of dollars,  for  the  work  and  labor  of  the  plaintiff,  before  that 

time  done,  performed,  and  bestowed,  in  and  about  the  repairing  of  the 
said  steamboat,  at  the  request  of  one  E.  F.,  then  the  master  thereof; 
which  said  demand  remains  wholly  unpaid  :  the  plaintiff  further  avers, 
that  he  does  not  know  who  are  the  owners  of  said  boat. 

C.  D.,  Plaintiff-.    • 

BiU  of  Particulars. 
18—. 

Jan.  1st.          The  Steamboat to ,      Dr. 

To.  ten  days'  labor  hi  painting  said  boat,  at  $ 

per  day, $ 

Another  form,  in  Attachment  against  Owners. 


STATE  OF  ILLINOIS,  ) 
COUNTY,      \ 


as. 


Before  L.  M.,  a  justice  of  the  peace  of  said  county. 

A.   B.  > 

vs.  >  Attachment. 

C.D..E.  F.andG.H.      ) 

C.  D.,  E.  F.  and  G.  H.,  the  defendants,  were  attached  in  this  case 
at  the  suit  of  A.  B.,   the  plaintiff,    and  thereupon  the   said  plaintiff 


288  ATTACHMENTS    OF   BOATS   AND   VESSELS.  [PART  3, 

complains,  for  that  whereas,  on  the day  of ,  18 — ,  at 

the  said  county,  the  said  C.  D.,  E.  F.  and  G.  H.  were  indebted  to  the 
plaintiff  in  the  sum  of  dollars,  for  certain  firewood  and  mate- 
rials before  that  time  furnished  by  the  plaintiff  to  the  defendants,  to  be 
used  in  and  about  the  repairing,  furnishing  and  fitting  the  steamboat 
,  at  the  request  of  the  said  defendants ;  which  demand  now  re- 
mains wholly  unpaid. 

A.  B.,  Plaintiff. 

* 

Bill  of  Particulars. 

C.  D.,  E.  F.  and  G.  H.,  owners  of  the 

18 — .  steamboat to ,      Dr. 

Jan'y  1st.     To  1,000  feet  pine  Lumber, $ 

"  To  1  doz.  Common  Chairs 

"  To  10  cords  Wood,  at  $ —  per  cord, 


Deputation  of  Constable  pro.  tern,  to  serve  Attachment. 

STATE  OF  ILLINOIS,  "> 
COUNTY,      j 

It  being  made  to  appear  to  the  undersigned,  a  justice  of  the  peace  of 
said  county,  that  there  is  a  probability  that  the  goods  and  chattels  of  the 
within  named  defendant  will  be  removed  before  application  can  be 
made  to  a  qualified  constable  to  execute  the  within  attachment,  he  there- 
fore appoints  0.  P.  to  execute  this  precept. 

Given  under  my  hand  and  seal,  this day  of ,  18 — . 

L.  M.,  /.  P.     [SEAL.] 


CHAP.  2.]  ACKNOWLEDGMENT  AND   PKOOF   OF   DEEDS.  289 


CHAPTER  II. 

OF   THE   ACKNOWLEDGMENT  AND   PROOF   OF  DEEDS  AND 
OTHER  INSTRUMENTS. 

Rev.  Stat.  106,  Sec.  17.  "When  any  husband  and  wife  residing 
in  this  State,  shall  wish  to  convey  the  real  estate  of  the  wife,  it  shall 
and  may  be  lawful  for  the  said  husband  and  wife,  she  being  above  the 
age  of  eighteen  years,  to  execute  any  grant,  bargain,  sale,  lease,  release, 
feoffment,  deed,  conveyance  or  assurance,  in  law  whatsoever,  for  the 
conveying  of  such  lands,  tenements  and  hereditaments;  and  if,  after  the 
executing  thereof,  such  wife  shall  appear  before  some  judge  or  other 
officer,  authorized  by  this  chapter  to  take  acknowledgments,  to  whom 
she  is  known,  or  proved  by  a  credible  witness  to  be  the  person  who 
executed  such  deed  or  conveyance,  such  judge  or  other  officer  shall  make 
her  acquainted  with,  and  explain  to  her  the  contents  of  such  deed  or 
conveyance,  and  examine  her  separate  and  apart  from  her  husband, 
whether  she  executed  the  same  voluntarily,  freely,  and  without  com- 
pulsion of  her  said  husband ;  and  if  such  woman  shall,  upon  such  ex- 
amination, acknowledge  such  deed  or  conveyance  to  be  her  act  and 
deed,  that  she  executed  the  same  voluntarily  and  freely,  and  without 
compulsion  of  her  husband,  and  does  not  wish  to  retract,  the  said  judge 
or  other  officer  shall  make  a  certificate  indorsed  on,  or  annexed  to  such 
deed  or  conveyance,  stating  that  such  woman  was  personally  known  to 
the  said  judge  or  other  officer,  or  proved  by  a  witness,  (naming  him,) 
to  be  the  person  who  subscribed  such  deed  or  conveyance,  and  setting 
forth  the  examination  and  acknowledgment  aforesaid,  and  that  the  con- 
tents were  made  known  and  explained  to  her ;  and  such  deed,  (being 
acknowledged  or  proved  according  to  law  as  to  the  husband,)  shall  be 
as  effectual  in  law  as  if  executed  by  such  woman  while  sole  and  un- 
married. No  covenant  or  warranty  contained  in  any  such  deed  or, 
18 


290  ACKNOWLEDGMENT    AND   PROOF    OF    DEEDS.  [PART  3, 

conveyance,  shall  in  any  manner  bind  or  affect  such  married  woman,  or 
her  heirs,  further  than  to  convey  from  her  and  her  heirs  effectually,  her 
right  and  interest  expressed  to  be  granted  or  conveyed  in  such  deed  or 
conveyance." 

When  by  Husband  and  Wife,  conveying  the  real  estate  of  the  wife.1 

STATE  OF  ILLINOIS,  ) 
Cook  COUNTY,      j 

I,  Homer  Wilmarth,  a  justice  of  the  peace  in  and  for  said  county, 
do  certify  that  C.  D.  and  E.  D.,  his  wife,  whose  signatures  appear  to 
the  foregoing  deed,  and  who  are  personally  known  to  me  to  be  the 
persons  whose  names  are  subscribed  to  such  deed,  as  having  executed 
the  same,  appeared  before  me  this  day  in  person,  and  did  acknowledge 
the  same  to  be  their  free  act  and  deed. 

And  the  said  E.  D.,  who  is  above  the  age  of  eighteen  years,  having 
been  by  me  examined  separate  and  apart  from  her  said  husband,  and 
the  contents  of  said  deed  having  been  by  me  made  known  and  explain- 
ed to  her,  she  acknowledged  that  she  had  executed  the  same  voluntarily, 
freely  and  without  compulsion  of  her  said  husband,  and  does  not  wish 
to  retract  the  same. 

Given  under  my  hand  and  seal  this day  of ,  A.  D.,  18 — . 

HOMER  WILMARTH,  J.  P.  [SEAL.] 

"  Sec.  20.  No  judge  or  other  officer,  shall  take  the  acknowl- 
edgment of  any  person  to  any  deed,  or  instrument  of  writing  as 
aforesaid,  unless  the  person  offering  to  make  such  acknowledgment, 
shall  be  personally  known  to  him  to  be  the  real  person  who,  and  in 
whose  name  such  acknowledgment  is  proposed  to  be  made,  or  shall  be 
proved  to  be  such,  by  a  credible  witness,  and  the  judge  or  officer  taking 
such  acknowledgment,  shall,  in  his  certificate  thereof,  state  that  such 
person  was  personally  known  to  him  to  be  the  person  whose  name  is 
subscribed  to  such  deed  or  writing,  as  having  executed  the  same,  or  that 
he  was  proved  to  be  such  by  a  credible  witness,  (naming  him.)  And 
on  taking  proof  of  any  deed  or  instrument  of  writing,  by  the  testimony 
of  any  subscribing  witnesses,  the  judge  or  officer  shall  ascertain  that 
the  person  who  offers  to  prove  the  same,  is  a  subscribing  witness,  either 
from  his  own  knowledge,  or  from  the  testimony  of  a  credible  witness  ; 
and  if  it  shall  appear  from  the  testimony  of  such  subscribing  witness, 

(1)  ROT.  Stat.  106,  Sec.  17.    See  ante,  Page  289. 


CHAP.  2.]  ACKNOWLEDGMENT    AND    PROOF    OP    DEEDS.  291 

that  the  person  whose  name  appears  subscribed  to  such  deed  or  writing, 
is  the  real  person  who  executed  the  same,  and  that  the  witness  sub- 
scribed his  name  as  such,  in  his  presence  and  at  his  request,  the  judge 
or  officer  shall  grant  a  certificate,  stating  that  the  person  testifying  as 
subscribing  witness,  was  personally  known  to  him  to  be  the  person  whose 
name  appears  subscribed  to  such  deed  as  a  witness  of  the  execution 
thereof,  or  that  he  was  proved  to  be  such  by  a  credible  witness,  (naming 
him,  and  stating  the  proof  made  by  him ;  and  where  any  grantor  or 
person  executing  such  deed  or  writing,  and  the  subscribing  witnesses 
are  deceased,  or  cannot  be  had,  the  judge  or  officer  as  aforesaid,  may 
take  proof  of  the  hand  writing  of  such  deceased  party  and  subscribing 
witness  or  witnesses  (if  any,)  and  the  examination  of  a  competent  and 
credible  witness,  who  shall  state  on  oath  or  affirmation,  that  he  person- 
ally knew  the  person,  whose  hand  writing  he  is  called  to  prove,  and 
well  knew  his  signature,  (stating  his  means  of  knowledge,)  and  that  he 
believes  the  name  of  such  person  subscribed  to  such  deed  or  writing, 
as  party  or  witness  (as  the  case  may  be),  was  thereto  subscribed  by 
such  person ;  and  when  the  hand  writing  of  the  grantor  or  person 
executing  such  deed  or  writing,  and  of  one  subscribing  witness  (if  any 
there  be,)  shall  have  been  proved  as  aforesaid,  the  judge  or  officer  shall 
grant  a  certificate  thereof,  stating  the  proof  aforesaid." 

Form  of  Certificate  of  Acknowledgment  by  one  Grantor,  personally 
known  to  the  Justice.1 

STATE  OF  ILLINOIS,  ) 

?•  ^!^» 

Cook  COUNTY,      |  ' l 

I,  0.  De  Wolf,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify  that  C.  D.,  whose  signature  appears  to  the  foregoing  deed,  and 
who  is  personally  known  to  me  to  be  the  person  whose  name  is  sub- 
scribed to  such  deed,  as  having  executed  the  same,  appeared  before  ine 
this  day  in  person,  and  did  acknowledge  the  same  to  be  his  free  act 
and  deed. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

C.  DEWOLF,  J.  P.     [SEAL.] 

(1)  Rev.  Stat.  107,  Sec.  20. 


'292  ACKNOWLEDGMENT   AND    PROOF    OF    DEEDS.  [PART  3, 

By  a  Grantor,  when  proved  by  a  credible  witness* 

STATE  OF  ILLINOIS,  ") 
Cook  COUNTY,      j  S£ 

I,  Patrick  Lamb,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify,  that  C.  D.,  whose  signature  appears  to  the  foregoing  deed,  who 
was  proved  to  me,  by  the  oath  of  E.  F.,  a  competent  and  credible  wit- 
ness, to  be  the  person  whose  name  is  subscribed  to  such  deed,  as  having 
executed  the  same,  appeared  before  me  this  day  in  person,  and  did 
acknowledge  the  same  to  be  his  free  act  and  deed. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

PATRICK  LAMB,  J.  P.  [SEAL.] 

When  proof  of  deed  or  instrument  is  taken  by  the  testimony  of  a 
subscribing  witness  known  to  the  justice.  * 

STATE  OF  ILLINOIS,  ) 
Cook  COUNTY,      j 

I,  Owen  Me  Carthy,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify,  that  C.  D.,  who  is  personally  known  to  me  to  be  the  person 
whose  name  appears  subscribed  to  the  foregoing  deed  as  a  witness  of  the 
execution  thereof,  appeared  before  me  this  day  in  person,  and  being 
duly  sworn,  according  to  law,  testified  that  E.  F.,  whose  name  appears 
subscribed  to  such  deed  as  having  executed  the  same,  is  the  real  person 
who  executed  the  same,  and  that  he,  the  said  C.  D.,  subscribed  his 
name  as  such  witness,  in  the  presence  of  the  said  C.  D.,  and  at  his 
request. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

OWEN  MCCARTHY,  J.  P.  [SEAL.] 

When  proof  of  deed  or  instrument  is  taken  by  subscribing  icitness, 
not  known,  but  proved  to  the  justice? 


STATE  OF  ILLINOIS,  , 

'  ss. 


Cook  COUNTY,       ) 
I,  Andrew  Aiken,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify,  that  C.  D.,  whose  name   appears  subscribed  to  the  foregoing 
deed,  as  a  witness  of  the  execution  thereof,  and  who  was  proved  to  me, 
by  the  oath  of  E.  F.,  a  competent  and  credible  witness,  to  be  the  per- 

(1)  Rev.  Stat.  107,  Sec.  20.    See  ante,  Page  290.  (2)  Ibid.    See  ante,  Page  290. 

(3)  Ibid.     See  ante,  Page  290. 


ClIAP.  2.]  ACKNOWLEDGMENT   AND    PROOF    OF    DEEDS.  293 

son  whose  name  appears  subscribed  to  such  deed  as  a  witness  to  the 
execution  thereof,  appeared  before  me  this  day  in  person,  and  being  duly 
sworn  according  to  law  testified,  that  G.  H.,  whose  name  appears  sub- 
scribed to  such  deed  as  having  executed  the  same,  is  the  real  person 
who  executed  the  same,  and  that  he,  the  said  C.  D.,  subscribed  his 
name  as  such  witness  in  the  presence  of  the  said  G.  H.,  and  at  his  re- 
quest. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

ANDREW  AIKEN,  J.  P.     [SEAL.] 

When  Proof  of  Deed  is  made,  where  the  grantor  and  subscribing 
witnesses  are  deceased,  or  not  to  be  had.1 

STATE  OF  ILLINOIS,  ") 
Cook  COUNTY,      j  ss> 

I,  M.  L.  Dunlap,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify,  that  C.  D.,  a  competent  and  credible  witness,  appeared  before 
me  this  day  in  person,  and  being  duly  sworn  according  to  law,  stated 
on  oath,  that  he  personally  knew  E.  F.,  whose  name  appears  subscribed 
to  the  foregoing  deed,  as  having  executed  the  same,  and  G.  H.,  whose 
name  appears  subscribed  to  such  deed  as  a  witness  to  the  execution 
thereof;  that  they  are  now  deceased,  (or  "cannot  be  had,"  as  the 
case  may  be)  •  that  he  well  knew  the  signature  of  each  of  said  persons, 
having  seen  each  of  them1  frequently  write  their  names,  (or  other 
means  of  knowledge,}  and  that  he  believes  the  name  of  said  E.  F.; 
subscribed  to  such  deed  as  having  executed  the  same,  and  the  name  of 
said  G.  H.,  subscribed  thereto  as  a  witness  of  the  execution  thereof, 
were  thereunto  subscribed  by  said  persons. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

M.  L.  DUNLAP,  J.  P.  [SEAL.] 

"  Sec.  21.  It  shall  and  may  be  lawful  for  any  married  woman  to 
release  her  right  of  dower  of,  in  and  to  any  lands  and  tenements, 
whereof  her  husband  may  be  possessed  or  seized,  by  any  legal  or  equi- 
table title  during  coverture,  by  joining  such  husband  in  the  deed  or 
conveyance,  for  the  conveying  of  such  lands  and  tenements,  and  ap- 
pearing and  acknowledging  the  same  before  any  judge  or  other  officer 
authorized  to  take  acknowledgments  by  this  chapter ;  and  it  shall  be 
the  duty  of  such  judge  or  other  officer,  if  such  woman  be  not  person- 
ally known  to  him  to  be  the  person  who  subscribed  such  deed  or  con- 

(1)  Rev.  Stat.  107,  Sec.  20.    See  ante,  Page 290. 


294  ACKNOWLEDGMENT    AND    PROOF    OF    DEEDS.  [PART  3, 

veyance,  to  ascertain  the  same  by  the  testimony  of  at  least  one  compe- 
tent and  credible  witness ;  and  upon  being  satisfied  of  that  fact,  shall 
acquaint  such  woman  with  the  contents  of  the  deed  or  conveyance,  and 
shall  examine  her  separate  and  apart  from  her  husband  whether  she 
executed  the  same,  and  relinquished  her  dower  to  the  lands  and  tenements 
therein  mentioned,  voluntarily,  freely,  and  without  compulsion  of  her 
said  husband ;  and  if  she  acknowledged  that  she  executed  the  same, 
and  relinquishes  her  dower  in  the  lands  and  tenements  therein  men- 
tioned, voluntarily,  freely  and  without  the  compulsion  of  her  husband, 
such  judge,  or  other  officer,  shall  grant  a  certificate  to  be  indorsed  on, 
or  annexed  to  such  deed,  stating  that  such  woman  was  personally  known 
to  him,  or  was  proved  by  a  witness  (naming  him)  to  be  the  person  who 
subscribed  such  deed  or  writing ;  and  that  she  was  made  acquainted 
with  the  contents  thereof,  and  was  examined  and  acknowledged  such 
deed  as  aforesaid  ;  which  being  recorded,  together  with  the  deed  duly 
executed  and  acknowledged  by  the  husband  according  to  law,  shall  be 
sufficient  to  discharge  and  bar  the  claim  of  such  woman  to  dower  in 
the  lands  and  tenements  conveyed  by  such  deed  or  conveyance." 

When  by  Husband  and  Wife  for  relinquishment  of  Dower.1 

STATE  OF  ILLINOIS,  ) 
Cook  COUNTY,      j  S{ 

I.  Benjamin  Cool,  a  justice  of  the  peace,  in  and  for  said  county,  do 
certify  that  C.  D.  and  E.  D.,  whose  names  appear  to  the  foregoing  deed, 
and  who  are  personally  known  to  me  to  be  the  persons  whose  names  are 
subscribed  to  such  deed  as  having  executed  the  same,  appeared  before 
me  this  day  in  person,  and  did  acknowledge  the  same  to  be  their  free  act 
and  deed. 

And  the  said  E.  D.,  wife  of  the  said  C.  D.,  having  been  by  me 
made  acquainted  with  the  contents  of  said  deed,  and  being  examined 
by  me  separate  and  apart  from  her  said  husband,  she  acknowledged  that 
she  executed  the  same,  and  relinquished  her  dower  to  the  lands  and 
tenements  therein  mentioned,  voluntarily,  freely  and  without  compul- 
sion on  the  part  of  her  said  husband. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

BENJAMIN  COOL,  J.  P.  [SEAL.] 

"  Sec.  24.  All  powers  or  letters  of  attorney,  or  agency,  authorizing 
the  granting,  selling,  conveying,  assuring,  releasing  or  transferring, 

(l)Rev.  Stat.  107,  Sec.  21. 


ClIAP.  2.]  ACKNOWLEDGMENT   AND   PROOF   OF   DEEDS.  295 


or  for  the  executing  or  acknowledging  of  any  grants, 
leases,  assurances,  or  other  conveyances  or  writings  whatsoever  concern- 
ing any  lands  and  tenements,  or  whereby  the  same  may  be  effected  in 
law  or  equity,  shall  be  acknowledged  or  proved,  and  recorded  as  herein 
before  required  in  cases  of  deeds  and  other  assurances ;  after  which  all 
grants,  conveyances  and  assurances,  made  and  acknowledged  pursuant 
to  the  powers  granted,  unless  the  same  be  revoked  by  a  deed  duly  ac- 
knowledged and  proven,  and  recorded  as  aforesaid,  shall  be  as  valid 
and  effectual  as  if  executed  and  acknowledged  by  the  constituent  or 
constituents." 

When  the  Grantor  executes  under  a  Power  of  Attorney.1 

STATE  OF  ILLINOIS,  ) 
Cook  COUNTY,      j 

I,  Nicholas  Berdel,  a  justice  of  the  peace  in  and  for  said  county,  do 
certify  that  C.  D.,  whose  signature  appears  to  the  foregoing  deed,  as 
the  attorney  of  E.  F.,  and  who  is  personally  known  to  me  to  be  the 
person  who  thus  subscribed  and  executed  the  same,  appeared  before  me 
in  person,  and  did  acknowledge  the  same  to  be  his  free  act  and  deed. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

NICHOLAS  BERDEL,  J.  P.  [SEAL.] 

"Sec.  41.  If  any  grantor  shall  not  have  duly  acknowledged  the 
execution  of  any  deed  or  instrument,  entitled  to  be  recorded,  and  the  sub- 
scribing witnesses  be  dead,  or  not  to  be  had,  it  may  be  proved  by  evi- 
dence of  the  hand  writing  of  the  grantor,  and  of  at  least  one  of  the  sub- 
scribing witnesses,  which  evidence  shall  consist  of  the  testimony  of  two  or 
more  disinterested  persons,  swearing  to  each  signature." 

Proof  of  Deed  of  Grantor,  when  the  subscribing  witnesses  are  dead, 
or  not  to  be  had.2 

STATE  OF  ILLINOIS,  > 
Cook  COUNTY,      )  S5 

I,  James  O'Donohue,  a  justice  of  the  peace  in  and  for  said  county, 
do  certify,  that  C.  D.  and  E.  F.,  two  disinterested  persons,  being  com- 
petent and  credible  witnesses,  appeared  before  me  this  day,  in  person, 
and  being  duly  sworn  according  to  law,  testified  that  they  were  person- 

(1)  Rer.  Stat.  108,  Sec.  24.  (2)  Rev.  Stat.  110,  Sec.  41. 


296  ACKNOWLEDGMENT   AND   PROOF   OF   DEEDS.  [PART  3, 

ally  acquainted  with  Gr.  H.,  the  person  whose  name  appears  subscribed 
to  the  foregoing  deed  as  grantor,  and  that  said  signature  is  in  the  hand 
writing  of  the  said  Gr.  H.,  and  also  that  they  were  acquainted  with  J. 
K.,  one  of  the  subscribing  witnesses,  (or  "  the  subscribing  witness,"  if 
but  one,)  thereto,  and  that  said  signature  of  said  witness  is  in  the  hand 
writing  of  the  said  J.  K. 

Given  under  my  hand  and  seal  this day  of ,  A.  D.  18 — . 

JAMES  O'DONOHTJE,  J.  P.     [SEAL.] 


ClIAP.  3.]  BASTARDY.  297 


CHAPTER   III. 

OF  BASTARDY,  AND  PROCEEDINGS  IN  CASES  THEKEOF. 
/ 

Rev.  Stat.  85,  Sec.  1.  "  When  any  unmarried  woman,  who  shall  be 
pregnant  or  delivered  of  a  child,  which  by  law  would  be  deemed  a 
bastard,  shall  make  complaint  to  any  one  or  more  of  the  justices  of  the 
peace  of  the  county  where  she  may  be  so  pregnant  or  delivered,  and 
shall  accuse,  under  oath  or  affirmation,  any  person  with  being  the  father 
of  such  child,  it  shall  be  the  duty  of  such  justice  or  justices  to  issue  a 
warrant,  directed  to  the  sheriff  or  any  constable  of  such  county,  against 
the  person  so  accused,  and  cause  him  to  be  brought  forthwith  before  him 
or  them.  Upon  his  appearance,  it  shall  be  the  duty  of  said  justice  or 
justices,  to  examine  the  said  woman,  upon  oath  or  affirmation,  in  the 
presence  of  the  man  alleged  to  be  the  father  of  the  child,  touching  the 
charge  against  him.  If  the  said  justice  or  justices  shall  be  of  opinion 
that  sufficient  cause  appears,  it  shall  be  his  or  their  duty  to  bind  the 
person  so  accused,  in  bond,  with  sufficient  and  good  security  to  appear 
at  the  next  circuit  court  to  be  holden  for  said  county,  to  answer  to 
such  charge ;  to  which  such  court  said  warrant  and  bond  shall  be 
returned.  On  neglect  or  refusal  to  give  such  bond  and  security,  the 
justice  or  justices  shall  cause  such  person  to  be  committed  to  the  jail 
of  the  county,  there  to  be  held  to  answer  such  complaint." 


BASTARDY. 


Form  of  Complaint  before  birth. 
STATE  OF  ILLINOIS, 


COUNTY,      f ss' 


The  complaint  of  A.  B.  of • — ,  in  said  county,  an  unmarried 

woman,  made  before  L.  M.,  Esquire,  one  of  the  justices  of  the  peace 


298  BASTARDY.  [PAET  3, 

in  and  for  said  county,  under  oath,  who  says  that  she  is  now  pregnant 
with  a  child,  and  that  the  said  child  is  likely  to  be  born  a  bastard  ; 

and  that  C.  D.,  of ,  in  the  said  county,  is  the  father  of  the 

said  child. 

Taken,  signed,  and  sworn,  this ^|  A.  B. 

day  of ,  18 — ,  before  me, 

L.  M.,  J.  P. 


Form  of  a  Complaint,  after  birth. 


STATE  OF  ILLINOIS, 


COUNTY 


)is, ) 

,  rs- 


The  complaint  of  A.  B.,  of ,  in  the  said  county,  an  unmar- 
ried woman,  made  before  L.  M.,  Esquire,  one  of  the  justices  of  the 

peace  in  and  for  said  county,  under  oath,  who  says,  that  on  the 

day  of ,  18 — ,  at  ,  in  the  county  aforesaid,  she  was 

delivered  of  a  (male)  bastard  child,  and  that  C.  D.  of ,  in  the 

said  county,  is  the  father  of  the  said  child. 

Taken,  signed,  and  sworn,  this ^  A.  B. 

day  of ,  18 — ,  before  me, 

L.  M.,  J.  P. 


Form  of  Warrant,  before  birth. 
STATE  OF  ILLINOIS, 


COUNTY,      r  ss' 


The  People  of  the  State  of  Illinois  to  the  Sheriff  or  any  Constable  of 
said  County : 

Whereas  A.  B.  of ,  in  the  said  county,  an  unmarried  woman, 

has  this  day  made  complaint  upon  oath,  before  L.  M.,  Esquire,  a 
justice  of  the  peace  in  and  for  said  county,  that  she  is  pregnant  with  a 
child,  which  is  likely  to  be  born  a  bastard,  and  that  C.  D.  is  the  father 
of  the  said  child  : 

We  therefore  command  you  to  arrest  the  said  C.  D.,  and  bring  him 
before  the  said  justice,  to  answer  unto  the  said  complaint,  and  to  be 
further  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  the  day 

of ,18—. 

L.  M.,  /.  P.     [SEAL.] 


CHAP.  3.]  BASTARDY.  299 

Form  of  Warrant,  after  birth. 

STATE  OF  ILLINOIS,  ") 
COUNTY,       f"  ss 

The  People  of  the  State  of  Illinois  to  the  Sheriff  or  any  Constable 
of  said  County : 

Whereas  A.  B.  of ,  in  the  said  county,  an  unmarried  woman, 

has  this  day  made  complaint  under  oath,  before  L.  M.,  Esquire,  a 

justice  of  the  peace  in  and  for  the  said  county,  that  on  the  

day  of ,  18 — ,  at  ,  in  the  county  aforesaid,   she  was 

delivered  of  a  (male)  bastard  child,  and  that  C.  D.  is  the  father  of  the 
said  child  : 

We  therefore  command  you  to  arrest  the  said  C.  D.,  and  bring  him 
before  the  said  justice,  to  answer  unto  the  said  complaint,  and  to  be 
further  dealt  with  according  to  law. 

Given  under  the  hand  and  seal  of  the  said  justice  the  day 

of ,  18—. 

L.  M.,  /.  P.     [SEAL.] 

Form  of  Oath  or  Affirmation  upon  the  examination. 

You  do  swear  (or,  "  you  do  solemnly,  sincerely,  and  truly  declare 
and  affirm,")  that  you  will  true  answers  make  to  all  such  questions 
as  shall  be  put  to  you,  touching  the  present  complaint  now  in  hearing 
against  C.  D. 

Form  of  Bond  for  appearance  at  the  Circuit  Court. 
STATE  OF  ILLINOIS, 


COUNTY,      f ss' 


Know  all  men  by  these  presents,  that  we,  C.  D.,  P.  Q.  and  R.  S., 
are  held  and  firmly  bound  unto  the  people  of  the  State  of  Illinois,  in 

the  sum  of dollars,  to  be  paid  to  the  said  people,  for  which 

payment  well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  exe- 
cutors and  administrators,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of- ,  185—. 

Whereas  complaint  has  been  made  before  L.  M.,  Esquire,  one  of 

the  justices  of  the  peace  in  and  for  the  said  county  of ,  by  A. 

B.  of ,  in  said  county,  an  unmarried  woman,  that  she  is  preg- 
nant with  a  child,  which  is  likely  to  be  born  a  bastard,  (or  "  that  on 


0  BASTARDY.  [PART  3, 

the day  of ,  185-,  she  was  delivered  of  a  (male)  bastard 

child,")  and  that  C.  D.  is  the  father  of  the  said  child ;  whereupon  the 
said  justice  issued  a  warrant,  and  caused  the  said  C.  D.  to  be  brought 
before  him  to  answer  the  said  complaint,  and  to  be  further  dealt  with 
according  to  law  ;  and  upon  examination  of  the  said  A.  B.,  upon  oath 
(or  "affirmation,")  in  the  presence  of  the  said  C.  D.,  touching  the 
said  charge,  and  upon  due  consideration  thereupon  had,  the  said  justice 
was  of  opinion  that  sufficient  cause  appeared,  and  did  adjudge  and 
determine  that  the  said  C.  D.,  enter  into  a  bond  with  good  and  suffi- 
cient security,  to  appear  at  the  next  circuit  court,  to  be  held  in  and  for 
the  said  county  of ,  to  answer  to  such  charge. 

Now  therefore  the  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  C.  D.,  shall  appear  at  the  next  circuit  court,  to  be  held 

in  and  for  the  said  county  of ,  and  answer  to  the  said  complaint, 

and  not  depart  the  court  without  leave,  then  this  obligation  to  be  void, 
otherwise  to  remain  in  force. 

Signed,  sealed  and  delivered     ""j  C.  D.     [SEAL.] 

in  the  presence  of  P.  Q.     [SEAL.] 

L.  M.,  /.  P.      j  R.  g.      [SEAL>] 

Form  of  Commitment  on  neglecting  or  refusing  to  give  bond. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      C  ss> 


The  People  of  the  State  of  Illinois  to  the  Sheriff"  or  any  Constable 
of  said  County,  and  to  the  Keeper  of  the  Common  Jail  of  said 
County  : 

Whereas  complaint  has  been  made  before  E.  F.,  Esquire,  one  of 
the  justices  of  the  peace  of  the  said  county,  by  A.  B.,  of  (Grafton 
precinct),  in  said  county,  an  unmarried  woman,  that  she  is  pregnant 

with  a  child  which  is  likely  to  be  born  a  bastard,  (or  "that  on  the day 

of ,  185-,  she  was  delivered  of  a  (male)  bastard  child,")  and 

that  C.  D.  is  the  father  of  the  said  child,  whereupon  the  said  justice 
issued  a  warrant,  and  caused  the  said  C.  D.  to  be  brought  before  him, 
to  answer  to  the  said  complaint,  and  to  be  further  dealt  with  according  to 
law  ;  and  upon  examination  of  the  said  A.  B.  upon  oath  (or  "  affirm- 
ation,") in  the  presence  of  the  C.  D.,  touching  the  said  charge,  and 
upon  due  consideration  thereupon  had,  the  said  justice  was  of  opinion 
that  sufficient  cause  appeared,  and  did  adjudge  and  determine  that 


CHAP.  3.]  BASTARDY.  301 

the  said  C.  D.  enter  into  a  bond  with  good  and  sufficient  security, 

in  the  sum  of dollars,  to  appear  at  the  next  circuit  court,  to  be 

held  in  and  for  the  said  county  of ,  to  answer  such  charge;  and 

the  said  C.  D.,  having  neglected  (or  refused)  to  give  such  bond  and 
security  : 

We,  therefore,  command  you,  the  said  sheriff  or  constable,  forthwith 
to  convey  the  said  C.  D.  to  the  common  jail  of  the  said  county,  and 
deliver  him  to  the  keeper  thereof,  together  with  this  precept ;  and  you, 
the  said  keeper,  are  hereby  required  to  receive  the  said  C.  D.  into  your 
custody,,  in  the  said  jail,  there  to  be  held  to  answer  such  complaint, 
until  he  shall  give  such  bond  and  security,  or  until  he  shall  be  dis- 
charged by  due  course  of  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,  185-. 

E.  F.,  J.  P.     [SEAL.] 

"  Sec.  2.  The  circuit  court  of  such  county,  at  their  said  next  term, 
shall  have  full  cognizance  and  jurisdiction  of  the  said  charge  of  bas- 
tardy, and  shall  cause  an  issue  to  be  made  up,  whether  the  person 
charged  as  aforesaid,  is  the  real  father  of  the  child  or  not,  which  issue 
shall  be  tried  by  a  jury.  Such  inquiry  shall  not  be  ex  parte,  when  the 
person  charged  shall  appear  and  deny  the  charge ;  but  he  shall  have  a 
right  to  appear  and  defend  himself  by  counsel,  and  controvert,  by  all 
legal  evidence,  the  truth  of  such  charge. 

"  Sec.  3.  If  at  the  time  of  such  court,  the  woman  be  not  delivered, 
or  be  unable  to  attend,  the  court  shall  order  a  recognizance  to  be  taken 
of  the  person  charged  as  aforesaid,  in  such  an  amount,  and  with  such 
sureties  as  the  court  may  deem  just,  for  the  appearance  of  such  person 
at  the  next  court,  after  the  birth  of  the  child  ;  and  should  such  mother 
not  be  able  to  attend  at  the  next  term  after  the  birth,  the  recognizance 
shall  be  continued  until  she  is  able. 

' '  Sec.  4.  On  the  trial  of  every  issue  of  bastardy,  the  mother  shall 
be  admitted  as  a  competent  witness,  and  her  credibility  shall  be  left  to 
the  jury.  She  shall  not  be  admitted  as  a  witness,  in  case  she  has  been 
duly  convicted  of  any  crime  which  would,  by  law,  disqualify  her  from 
being  a  witness  in  another  case. 

"  Sec.  5.  In  case  the  issue  be  found  against  the  defendant,  or  reputed 
father,  or  whenever  he  shall,  in  open  court,  have  confessed  the  truth  of 
the  accusation  against  him,  he  shall  be  condemned  by  the  judgment  of 
the  said  court,  to  pay  such  sum  of  money,  not  exceeding  fifty  dollars, 


302  BASTARDY.  [PART  3, 

yearly,  for  seven  years,  as  in  the  discretion  of  the  said  court  may  seem 
just  and  necessary  for  the  support,  maintenance,  and  education  of  such 
child ;  and  shall,  moreover,  be  adjudged  to  pay  all  the  costs  of  the 
prosecution,  for  which  execution  shall  issue  as  in  other  cases  of  costs. 
The  said  defendant,  or  reputed  father,  shall  give  bond  and  security  for 
the  due  and  faithful  payment  of  such  sum  of  money,  as  shall  be  ordered 
to  be  paid  by  the  said  court,  to  be  paid  by  him  for  the  period  aforesaid ; 
which  shall  be  made  payable  quarter-yearly  to  the  judge  of  the  court  of 
probate,  and  his  successor  in  office  for  the  county  in  which  the  prosecu- 
tion aforesaid  was  commenced  ;  and  the  same,  when  received,  shall  be 
laid  out  and  appropriated,  from  time  to  time,  by  the  said  judge,  under 
his  order  and  direction,  for  the  purposes  aforesaid.  In  case  the  defend- 
ant, or  reputed  father,  shall  refuse  or  neglect  to  give  such  security  as 
may  be  ordered  by  the  court,  he  shall  be  committed  to  the  jail  of  the 
county,  there  to  remain  until  he  shall  comply  with  such  order,  or  until 
otherwise  discharged  by  due  course  of  law :  Provided,  always,  That  the 
said  reputed  father,  after  giving  bond  with  approved  security,  to  the 
court  of  probate,  in  said  county,  conditioned  for  the  suitable  mainte- 
nance of  any  such  child,  for  the  term  aforesaid,  shall  be  permitted  to 
take  charge  and  have  the  control  of  his  said  child,  at  any  time  after 
said  child  shall  arrive  at  the  age  of  three  years  ;  and  from  the  time  of 
,  the  said  father  taking  charge  of  such  child,  or  should  the  mother  refuse 
to  surrender  the  said  child,  when  so  demanded  by  the  said  father,  then 
and  from  thenceforth,  the  said  father  shall  be  released  and  discharged 
from  the  judgment  of  all  such  sum  or  sums  of  money  as  may  thereafter 
become  due  against  the  said  father,  for  the  support,  maintenance,  and 
education  of  any  such  child.  If  the  said  child  should  never  be  born 
alive,  or  being  born  alive,  should  die  at  any  time,  and  the  fact  shall  be 
suggested  upon  the  record  of  the  said  court,  then  the  bond  aforesaid 
shall  from  thenceforth  be  void.  But  when  a  guardian  shall  be  appointed 
for  such  bastard,  the  money  arising  from  such  bond  shall  be  paid  over 
to  such  guardian. 

"  Sec.  6.  If,  upon  the  trial  of  the  issue  aforesaid,  the  jury  shall  find 
that  the  child  is  not  the  child  of  the  defendant,  or  pretended  father,  then 
the  judgment  of  the  court  shall  be,  that  he  be  discharged.  The  woman 
making  the  complaint  shall  pay  the  costs  of  the  prosecution,  and  judg- 
ment shall  be  entered  therefor,  and  execution  may  thereupon  issue. 

"  Sec.  7.  If  the  mother  of  any  bastard  child,  and  the  reputed 
father,  shall  at  any  time  after  its  birth,  intermarry,  the  said  child  shall 


CHAP.  3.]  BASTARDY.  303 

in  all  respects,  be  deemed  and  held  legitimate,  and  the  bond  aforesaid 
be  void. 

"  Sec.  8.  No  prosecution,  under  this  chapter,  shall  be  brought  after 
two  years  from  the  birth  of  the  bastard  child  :  Provided,  The  time  any 
person  acccused  shall  be  absent  from  the  State,  shall  not  be  computed." 

Under  the  fifth  section  of  the  foregoing  chapter  of  the  statute,  it  will 
be  observed  that  the  father  after  entering  into  the  bond  required  by  said 
section,  may  demand,  and  is  entitled  to  the  possession,  control,  and 
charge  of  the  child.  If  the  mother  refuse  to  surrender  it,  he  is  dis- 
charged from  his  liability  upon  the  bond,  so  long  as  she  continues  to 
refuse  ;  if  she  surrender  it,  the  father  is  not  required  to  give  a  further 
bond,  but  he  is  bound  for  its  maintenance,  support  and  education  there- 
after, during  its  minority,  in  the  same  manner  as  though  it  had  been 
born  in  lawful  wedlock.  Under  the  common  law,  it  was  otherwise  ; 
the  reputed  father  was  not  entitled  to  the  custody  of  the  child.1 

Bastardy  is  in  law  a  misdemeanor,  which  may  be  compromised  or 
compounded,  at  the  discretion  of  the  parties  interested.2 

(1)  2  Gil.  587.  (2)  3  Scam.  380. 


304  CONTEMPT   OF   COURT.  [PART  3, 


CHAPTER    IV. 

OF  CONTEMPT  OF  COURT. 

Rev.  Stat.  322,  Sec.  50.  "  Every  person  who  shall  appear  before 
a  justice  of  the  peace,  when  acting  as  such,  or  who  shall  be  present  at 
any  legal  proceeding  before  a  justice,  shall  demean  himself  in  a  decent, 
orderly,  and  respectful  manner;  and  for  failure  to  do  so,  such  person 
shall  be  fined  by  the  said  justice,  for  contempt,  in  any  sum  not  more 
than  five  dollars." 

The  power  to  punish  for  contempt  is  incident  to  all  courts  of  justice, 
independent  of  statutory  provisions.1 

When  a  contempt  is  committed,  in  violation  of  the  foregoing  section 
of  the  statute,  the  offender  may  be  instantly  apprehended  and  dealt 
with  according  to  law,  without  any  further  proof  or  examination.  The 
justice  may  at  once  draw  up  a  conviction,  according  to  the  truth  of  the 
case.2 

Form  of  Record  of  Conviction. 

STATE  or  ILLINOIS,  ) 
COUNTY,      }  ss' 

Be  it  remembered  that  on  this day  of instant,  dur- 
ing the  trial  of  a  case  between  A.  B.,  plaintiff,  and  C.  D.,  defendant, 
before  me,  L.  M.,  Esquire,  one  of  the  justices  of  the  peace  in  and  for 

the  county  of ,  at  my  office  in ,  in  said  county,  J.  K. 

did  willfully  and  contemptuously  accuse  me  of  gross  partiality  and  abuse 
of  power,  in  the  office  of  justice  of  the  peace,  in  the  presence  of  a  nuin- 

(1)  Breese,  266  ;  3  Scam.  403.  (2)  4  Bl.  Com.  286. 


ClIAP.  4.]  CONTEMPT   OF    COURT.  305 

ber  of  bystanders,  (or  "  interrupted  me  while  engaged  in  the  trial  of 
the  said  cause,  by  making  a  great  noise  and  disturbance,  and  being 
ordered  by  me  to  cease,  refused  so  to  do,  and  said  that  he  did  not  regard 
me  nor  my  authority,"  or  if  for  any  other  cause,  set  it  forth  particu- 
larly*) •  and,  whereas  the  said  J.  K.  was  forthwith  called  upon  by  me, 
and  required  to  answer  for  the  said  contempt,  and  show  cause  why  he 
should  not  be  convicted  thereof,  but  did  not  make  any  defense,  nor  show 
any  cause  why  he  should  not  be  convicted,  nor  make  any  apology  for 
his  said  conduct : 

Therefore  I,  the  said  justice,  do  hereby  convict  the  said  J.  K.  of  the 
said  contempt,  and  adjudge  and  determine  that  he  pay  a  fine  of  five 
dollars,  and  that  he  be  committed  to  the  common  jail  of  said  county, 
until  he  pay  the  said  fine,  or  until  he  shall  be  discharged  by  due  course 
of  law. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal,  this 

day  of  -       — ,  18—. 

L.  M.,  J.  P.     [SEAL.] 

Form  of  Commitment  for  a  Jine. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  Sf 

The  People  of  the  State  of  Illinois  to  any   Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County : 

Whereas,  on  this day  of ,  18 — ,  while  L.  M.,  Esquire, 

one  of  the  justices  of  the  peace  of  the  said  county,  was  engaged  in  the 
trial  of  a  cause  between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  at  his 
office  in ,  in  the  said  county.  J.  K.  did  willfully  and  contemptu- 
ously [interrupt  the  proceedings  in  said  cause  by  making  a  great  dis- 
turbance, and  being  ordered  by  said  justice  to  cease,  refused  so  to  do, 
and  said  that  he  did  not  regard  him  nor  his  authority]  ;  and,  whereas, 
the  said  J.  K.  was  forthwith  called  upon  by  the  said  justice,  and  re- 
quired to  answer  for  the  said  contempt,  and  show  cause  why  he  should 
not  be  convicted  thereof,  but  did  not  make  any  defense  nor  show  any 
cause  why  he  should  not  be  convicted,  nor  make  any  apology  for  his 
said  conduct ;  and,  whereas,  the  said  justice  did  thereupon  convict  the 
said  J.  K.  of  the  said  contempt,  and  adjudge  and  determine  that  he 
pay  a  fine  of  five  dollars,  and  that  he  be  committed  to  the  common  jail 
of  the  said  county  until  he  pay  the  said  fine,  or  until  he  be  discharged 
by  due  course  of  law  : 
19 


306  CONTEMPT  OF  COURT.  [PART  3, 

We,  therefore,  command  you,  the  said  constable,  to  take  the  said 
J.  K.  and  deliver  him  to  the  keeper  of  the  common  jail  of  the  said 
county,  together  with  this  warrant;  and  you,  the  said  keeper,  are  hereby 
required  to  receive  him  into  your  custody,  in  the  said  jail,  and  him  there 
safely  keep,  until  he  pay  the  said  fine,  or  until  he  shall  be  discharged 
by  due  course  of  law.  Hereof  fail  not  at  your  peril. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day  of 

,  18—. 

L.  M.,  /.  P.     [SEAL.] 

Form  of  Commitment  of  Witness  on  neglecting  to  pay  a  fine  for  non- 
attendance.1 

STATE  OF  ILLINOIS,  > 
COUNTY,      }  ss 

The  people  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : 

Whereas,  John  Doe  has  this  day  been  convicted  before  me,  L. 
M.,  Esquire,  a  justice  of  the  peace  in  and  for  the  said  county,  for  a 
contempt,  for  that  the  said  John  Doe  was  duly  subpoenaed  to  appear 
and  testify  in  a  suit  depending  before  the  said  justice,  between  A.  B., 

plaintiff,  and  C.  D.,  defendant,  on  the day  of ,  18 — ,  and 

failing  so  to  attend,  and  he  not  having  purged  himself  when  called  upon 
by  me  to  show  cause  why  he  should  not  be  fined  for  such  contempt,  and, 
whereas,  upon  such  conviction  the  said  justice  did  adjudge  and  deter- 
mine that  the  said  John  Doe  should  pay  a  fine  of  five  dollars,  and 
be  imprisoned  in  the  common  jail  of  the  said  county,  until  he  paid  the 
said  fine  or  was  discharged  by  due  course  of  law ;  and,  whereas  the 
said  John  Doe  has  neglected  to  pay  the  said  fine : 

We,  therefore,  command  you,  the  said  constable,  to  take  the  said 
John  Doe  and  deliver  him  into  the  custody  of  the  said  keeper  of  the 
said  jail.  And  you  the  said  keeper  are  hereby  required  to  receive  the 
said  John  Doe  into  your  custody  in  the  said  jail,  and  him  there  safely 
keep  until  he  pay  the  said  fine  or  be  discharged  by  due  course  of  law. 
Hereof  fail  not. 

Given  under  the  hand  and  seal  of  the  said  justice,  this  day 

of ,18—. 

L.  M.,  J.  P.     [SKAL.] 

(1)  This  form  should  more  properly  have  been  embraced  under  the  head  of  "  attachment 
againxt  defaulting  witnesses,"  ante,  page  83,  but  was  inadvertently  omitted,  and  is  therefore 
inserted  here. 


ClIAP.    4.]  CONTEMPT    OF    COURT.  .'i(>7 

Form  of  Commitment  of  a  Witness  for  refusing  to  be  sworn,  or  for  re- 
fusing to  testify.1 

STATE  OF  ILLINOIS,  ) 
COUNTY,      j  ss 

The  people  of  the  State  of  Illinois  to  any  Constable  of  the  said 
County,  and  to  the  Keeper  of  the  Common  Jail  of  said  County, 
GREETING  : 

Whereas,  on  the  trial  of  a  cause  before  L.  M.,  Esquire,  a  justice  of 
the  peace  of  the  said  county,  between  A.  B.,  plaintiff,  and  C.  D.,  de- 
fendant, John  Doe  being  called  as  a  witness  on  the  part  of  the  plaintiff, 
(or  "  defendant,")  and  being  present  and  admitting  that  he  had  been 
duly  subpoenaed  to  attend  the  said  trial  as  a  witness  on  the  part  of  the 
said  plaintiff,  (or  "defendant,")  (or  "  it  being  proved  to  me  by  the 
oath  of  the  said  plaintiff,"  (or  "  defendant,")  or  "by  the  oath  of  J. 
K.,"  or  "by  the  return  of  R.  S.,  one  of  the  constables  of  said  county, 
that  the  said  John  Doe  had  been  duly  subpoenaed,"  &c.) ;  refused  to 
be  sworn  as  such  witness  in  any  form  prescribed  by  law,  (or  "John 
Doe  was  called  and  sworn  as  a  witness  on  the  part  of  said  plaintiff,  and 
on  his  examination  as  such  witness  the  said  John  Doe  was  asked  by  the 
said  plaintiff  the  pertinent  and  proper  question,  "whether  he  was  ac- 
quainted with  the  hand  writing  of  C.  D.  ?"  to  which  question  the  said 
John  Doe  refused  to  make  answer.") 

And  the  said  A.  B.  having  made  oath  before  the  said  justice  of  the 
peace  that  the  testimony  of  the  said  John  Doe  was  so  far  material  that 
without  it  he  could  not  safely  proceed  to  the  trial  of  said  cause  : 

We,  therefore,  command  you,  the  said  constable,  to  take  and  deliver 
the  said  John  Doe  into  the  custody  of  the  said  keeper  of  the  said 
jail.  And  you  the  said  keeper  are  hereby  required  to  receive  the 
said  John  Doe  into  your  custody,  in  the  said  jail,  and  him  there 
safely  keep  until  he  shall  submit  to  be  sworn  as  such  witness  as  afore- 
said, and  shall  be  discharged  by  due  course  of  law,  (or  "  until  he  shall 
submit  to  answer  the  said  question  so  put  to  him  by  the  said  A.  B., 
and  be  discharged  by  due  course  of  law.")  Hereof  fail  not  at  your 
peril. 

Given  under  the  hand  and  seal  of  the  said  L.  M.,  justice  of  the 

peace,  this day  of ,   18 — . 

L.  M.,  /.  P.     [SEAL.] 

(1)    This  form,  like  the  preceding  one,  is  not  strictly  in  place  under  this  chapter,  but  was 
inadvertently  omitted  in  its  proper  order. 


308  DISTRESS    FOB    RENT.  [PART  3, 


CHAPTER   V. 

OF  DISTKESS  FOR  RENT. 

A  distress  is  defined  to  be  the  taking  of  a  personal  chattel,  without 
legal  process,  from  the  possession  of  the  wrong  doer  into  the  hands  of 
the  party  grieved,  as  a  pledge  for  the  redress  of  an  injury,  the  perform- 
ance of  a  duty,  or  the  satisfaction  of  a  demand.1  It  is  a  general  rule, 
that  a  man  who  has  an  entire  duty,  shall  not  split  the  entire  sum,  and 
distrain  for  part  of  it  at  one  time,  and  part  of  it  at  another  time.  But 
if  a  man  seizes  for  the  whole  sum  that  is  due  him,  but  mistakes  the 
value  of  the  goods  distrained,  there  is  no  reason  why  he  should  not 
afterwards  complete  his  execution  by  making  a  further  seizure.2  It 
is  to  be  observed  also,  that  there  is  an  essential  difference  between 
distress  at  common  law,  and  distress  prescribed  by  statute.  The 
former  are  taken  nomine  penae,  (by  way  of  penalty,)  as  a  means  of 
compelling  payment ;  the  latter  are  similar  to  executions,  and  are  taken 
as  satisfaction  for  a  duty ;  the  former  could  not  be  sold ;  the  latter 
might  be.  Their  only  similarity  is  that  both  are  replevisable.8 

Rev.  Stat.  334,  Sec.  6.  "In  all  cases  of  distress  for  rent,  the 
person  making  the  same,  shall  immediately  file  with  some  justice  of 
the  peace,  in  case  the  amount  claimed  does  not  exceed  one  hundred 
dollars,  or  with  the  clerk  of  the  circuit  court,  in  case  it  exceeds  that 
sum,  ti  copy  of  the  distress  warrant,  together  with  an  inventory  of  the 
property  levied  upon  ;  and  thereupon  the  party  against  whom  the 
distress  warrant  shall  have  been  issued,  shall  be  duly  summoned,  and 
the  amount  due  from  him  assessed  and  entered  upon  the  records  of  the 
court  finding  the  same.  The  said  court  shall  certify  to  the  person  or 

(1)  3  Bl.  Com.  6.  (2)  1  Burr.  589.  (3)  See  1  Bouv.  L.  D.,  title  "  Distress." 


ClIAP.   5.]  DISTRESS    FOR   RENT.  309 

officer  making  the  same,  the  amount  so  found  due,  together  with  the 
costs  of  court ;  and  said  officer  shall  thereupon  proceed  to  sell  the 
property  so  distrained,  and  make  the  amount  thus  certified  to  him, 
and  return  the  certificate  so  issued  to  him,  with  an  endorsement  thereon 
of  his  proceedings,  which  return  and  certificate  shall  be  filed  in  the 
proper  court. 

"  Sec.  7.  In  all  cases  of  distress  for  rent,  it  shall  be  lawful  for 
the  landlord,  by  himself,  his  agent,  or  attorney,  to  seize  for  rent  any 
personal  property  of  his  tenant  that  may  be  found  in  the  county  where 
such  tenant  shall  reside ;  and  in  no  case  shall  the  property  of  any 
other  person,  although  the  same  may  be  found  on  the  premises,  be 
liable  to  seizure  for  rent  due  from  such  tenant. 

"  Sec.  8.  Every  landlord  shall  have  a  lien  upon  the  crops  growing 
or  grown  upon  the  demised  premises  in  any  year,  for  rent  that  shall 
accrue  for  such  year. 

"  Sec.  9.  In  case  of  the  removal  or  abandonment  of  the  premises, 
or  any  part  thereof,  by  such  tenant,  all  grain  or  vegetables  grown  or 
growing  upon  any  part  of  the  premises  so  abandoned,  may  be  seized 
by  the  landlord,  his  agent,  or  attorney,  before  the  rent  is  due,  and  the 
landlord'  so  distraining,  shall  cause  the  grain  or  vegetables  so  growing, 
to  be  properly  cultivated  and  perfected,  and  in  all  cases  husband  such 
grain  or  vegetables  grown  and  growing,  until  the  rent  agreed  upon  shall 
become  due,  when  it  shall  be  lawful  for  such  landlord,  his  agent,  or 
attorney,  to  sell  and  dispose  of  the  same  as  in  other  cases  of  seizure, 
after  the  rent  shall  have  become  due ;  and  also  to  retain  a  just  com- 
pensation for  his  care,  culture,  and  husbanding  of  such  grain  or 
vegetables  :  Provided,  That  such  tenant  may  at  any  time  redeem  the 
property  so  taken  before  the  rent  is  due,  by  tendering  the  rent  agreed 
upon,  and  all  reasonable  expenses  attending  the  same,  for  care,  culti- 
vation, and  husbandry,  as  aforesaid,  or  replevy  the  same,  as  in  case.of 
seizure,  where  the  rent  is  due. 

"  Sec.  10.  When  any  goods  or  chattels  shall  be  distrained  for  rent, 
and  the  tenant  or  owner  of  the  goods  so  distrained,  shall  not,  within 
five  days  after  such  distress  taken,  and  notice  thereof,  and  the  cause 
of  taking,  replevy  the  same  with  sufficient  security,  according  to  law, 
the  person  distraining,  or  his  agent  duly  authorized,  may  with  the 
sheriff  or  constable  of  the  county,  cause  the  goods  and  chattels  so 
distrained,  to  be  appraised  by  two  reputable  freeholders  under  oath, 
which  oath  may  be  administered  by  such  sheriff  or  constable,  to 
appraise  said  goods  and  chattels,  according  to  their  best  judgment  and 


310  DISTRESS    FOR   RENT.  [PART  3, 

understanding ;  the  person  making  such  distress,  after  having  obtained 
such  assessment  as  specified  in  section  six  of  this  chapter,  and  on 
giving  ten  days'  notice,  may  sell  such  goods  and  chattels  at  public 
auction,  and  after  retaining  the  amount  of  rent  distrained  for,  and  the 
costs  of  distress  and  sale,  shall  pay  the  overplus,  if  any  there  be,  to 
such  tenant  or  tenants. 

"  Sec.  11.  Any  landlord  distraining,  or  officer  or  other  person,  in 
whose  hands  perishable  property  may  be,  when  there  is  danger  that 
the  same  will  perish  or  be  lost  if  it  shall  remain  undisposed  of  until 
the  conclusion  of  the  suit,  such  landlord,  officer,  or  other  person,  may 
sell  the  same,  as  provided  in  the  pi^ceding  section,  and  after  paying 
the  costs  attending  such  sale,  shall  pay  over  the  balance  to  the  person 
or  persons  to  whom  the  same  shall  be  due. 

"  Sec.  12.  The  same  articles  of  personal  property  which  are  by 
law  exempt  from  execution,  except  the  crops  grown  or  growing  upon 
the  demised  premises,  shall  also  be  exempt  from  distress  for  rent." 

Warrant  of  Distress  by  Landlord. 

STATE  OF  ILLINOIS, 
COUNTY, 

To  the  Sheriff  or  any  Constable  of  the  said  County : 
Distrain  the  goods  and  chattels  of  C.  D.,  which  are  liable  to  be  dis- 
trained, wherever  they  may  be  found  in  the  county  of  ,  where 

the  said  C.  D.  resides,  for  the  sum  of  twenty-jive  dollars,    being  one 

quarter's  (or  "one  year's")  rent  due  me  on  the day  of 

185-,  for  the  premises  now  in  his  possession,  demised  to  him  by  me, 
and  situated  in  said  county.  A.  B. 

Dated  the day  of 185-. 

Form  of  Inventory. 

An  inventory  of  the  several  goods  and  chattels  of  C.  D.,  distrained 

by  me,  0.  P.,  Constable,  on  the day  of ,  18 — ,  in  the 

county  of ,  where  the  said  C.  D.  resides,  by  virtue  of  the  war- 
rant and  authority,  and  in  behalf  of  E.  F.,  the  landlord,  for  the  sum 

of dollars,  being  one  quarter's  (or  "  one  year's")  rent  due  to 

the  said  landlord,  on  the day  of ,  18 — ,  for  the  premises 

in  the  warrant  mentioned,  to  wit : 

Two  tables,  six  chairs,  &c. 

One  cow,  two  mules,  one  wagon,  &c. 


ClIAP.    5.]  DISTRESS    FOR    RENT.  311 

Form  of  Notice  to  the  Tenant. 

Mr.  C.  D.  : 

Take  notice,  that  I  have  distrained  the  several  goods  and  chattels 

specified  in  the  above  inventory,  for  the  sum  of dollars,  being 

one  quarter's  (or  as  the  case  is)  rent,  due  to  E.  F.,  your  landlord,  on 

the day  of  ,.18 — ,  for  said  premises.     (If  the  beasts 

are  impounded  in  a  private  pound,  then  say,  "  and  the  beasts  therein 
mentioned  are  impounded  in  the  private  pound,  or  enclosure,  of  R.  S., 
near  his  house,  in  said  county,")  and  that,  unless  you  pay  the  said  rent, 
with  the  costs  of  distraining  for  the  same,  within  five  days  from  the  ser- 
vice hereof,  after  the  landlord's  demand  shall  be  proved,  pursuant  to 
the  statute,  the  said  goods  and  chattels  will  be  appraised  and  sold 
according  to  law. 

Given  under  my  hand,  at ,  in  the  county  of  ,  the 

day  of ,  18—. 

0.  P.,  Constable. 

The  landlord,  having  distrained  the  goods  and  chattels  of  the  tenant, 
the  same  proceedings  should  then  be  had  as  in  cases  arising  under  the 
statute,  conferring  civil  jurisdiction  upon  justices  of  the  peace.  It  is 
also  held  to  be  an  indispensable  requisite  in  all  proceedings  affecting  the 
rights  of  an  individual,  that  the  individual  to  be  affected  shall  have 
notice  of  such  proceedings,  and  the  justice  should  not  proceed  to  judg- 
ment without  evidence  before  him  that  such  notice  has  been  given.1 

A  landlord  has  a  right  to  distrain  for  rent,  where  no  power  of  dis- 
tress is  contained  in  the  lease.2 

In  case  of  distress  for  rent,  the  court  has  only  to  inquire  whether  the 
relation  of  landlord  and  tenant  exists,  and  to  ascertain  the  amount  of 
rent  due,  when  the  distress  was  made,  and  enter  the  assessment  on  the 
record,  and  certify  the  amount  and  costs  to  the  bailiff.8 

In  such  a  proceeding,  the  landlord  cannot  introduce  a  demand  against 
the  tenant  for  which  he  has  not  the  right  to  distrain ;  nor  can  the  ten- 
ant set  up,  by  way  of  set-off,  any  demand  against  the  landlord.  The 
tenant  may  show  that  he  has  made  payment  on  account  of  rent,  to  re- 
duce the  amount  of  the  assessment.4 

The  goods  of  a  sub-lessee  of  a  part  of  demised  premises,  are  not 
liable  to  be  distrained  for  rent  reserved  in  the  original  lease.5 

(1)  1  Scam.  515.     See  also  Rev.  Stat.  316,  Sec.  17,  paragraph  6th,  in  relation  to  jurisdiction 
of  justices  of  the  peace  ;  also,  ante,  p.  27. 
(2;  3  Scam.  306.  (3)  14  III.  75.  (4)  Ibid.  (6)  11  111.  527. 


312  DISTRESS    FOR   RENT.  [PART  3, 

. 

Form  of  Summons  after  the  goods  have  been  distrained. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      }  ss 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : 

Whereas  A.  B.  has  lately  distrained  the  goods  and  chattels  of  C.  D., 

for  the  sum  of dollars,  claimed  to  be  due  to  him  for  the  rent  of 

certain  premises  leased  to  the  said  C.  D. : 

We,  therefore,  command  you  to  summon  the  said  C.  D.,  to  appear 
before  L.  M.,  Esquire,  one  of  the  justices  of  the  peace  of  the  said 

county,  at  his  office  in ,  in  the  said  county,  on  the day  of 

,  185-,  at o'clock  in  the noon,  to  answer  the  com- 
plaint of  the  said  A.  B.,  for  a  failure  to  pay  him  a  certain  demand  not 
exceeding  one  hundred  dollars,  and  do  you  make  return  hereof,  as  the 
law  directs. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day  of 

,  185-. 

L.  M.,  /.  P.     [SEAL). 

After  the  rent  shall  have  been  proved  to  the  satisfaction  of  the  justice, 
he  will  render  judgment  accordingly,  and  if  the  same  is  not  paid,  and 
the  goods  distrained  are  not  replevied  according  to  law,  the  landlord  will 
then  apply  to  the  constable,  and  procure  the  goods  and  chattels  to  be 
appraised  by  two  reputable  freeholders  under  oath. 

form  of  Oath  to  be  administered  to  Appraisers. 

You  and  each  of  you,  do  swear,  that  you  will,  well  and  truly, 
appraise  the  goods  and  chattels  of  C.  D.,  pointed  out  to  you  as  being 
distrained  by  A.  B.,  according  to  your  best  judgment  and  understand- 
ing. 

The  constable  will  then  endorse  on  the  inventoiy  before  taken,  the 
following  memorandum : 

Memorandum. — That  on  the day  of—  — ,  18 — ,  L.  M. 

and  J.  N.,  appraisers,  were  severally  sworn  (or  "affirmed,")  by  the 

subscriber,  a  constable  of  the  county  of ,  well  and  truly  to 

appraise  the  goods  and  chattels  mentioned  in  this  inventory,  according 
to  their  best  judgment  and  understanding. 

As  witness  my  hand.  0.  P.,  Constable. 


CHAP  5.]  DISTRESS  FOR  RENT.  313 

Form  of  the  Appraisement  to  be  etidorsed  on  (lie  inventory. 

We,  the  above  named  L.  M.  and  J.  N.,  being  duly  sworn  (or 
"affirmed,")  by  0.  P.,  the  constable  above  named,  well  and  truly  to 
appraise  the  goods  and  chattels  mentioned  in  this  inventory,  according 
to  our  best  judgment  and  understanding,  and  having  viewed  the  goods 

and  chattels,  do  appraise  and  value  the  same  at  the  sum  of 

dollars  and cents. 

As  witness  our  hands  the day  of ,  18- 

L.  M., 
J. 


M   ~) 
?  mr?  i  Appraisers. 


form  of  Notice  of  Sale. 

Notice  is  hereby  given,  that  on  the day  of ,  18 — ,  at 

o'clock,  — M.,  at in ,  in  pursuance  of  the  statute  in 


such  case  made  and  provided,  I  shall  expose  to  sale  at  public  vendue, 
(describe  the  property,)  of  the  goods  and  chattels  of  C.  D.,  lately  dis- 
trained for  rent  due  to  A.  B. 

Dated  this day  of-- ,  18—. 

0.  P.,  Constable. 


314  CONTESTING    ELECTIONS.  [PART  3, 


CHAPTER    VI. 

OF  CONTESTING  ELECTIONS. 

Rev.  Stat.  222,  Sec.  42.  "When  any  candidate  shall  desire  to  con- 
test the  validity  of  any  election,  or  the  right  of  any  person  declared 
duly  elected,  to  hold  the  office  to  which  such  candidate  claims  the  right, 
such  candidate  shall  give  notice  of  his  intention  in  writing,  to  the  per- 
son whose  election  he  intends  to  contest,  or  leave  a  notice  thereof  at  his 
usual  place  of  residence,  within  thirty  days  after  the  day  of  election, 
expressing  the  points  on  which  the  same  will  be  contested,  the  name  of 
one  of  the  justices  of  the  peace  who  will  attend  at  the  taking  of  the 
depositions,  the  place  where,  and  the  time  when  said  depositions  will 
be  taken  ;  which  time  so  fixed  upon  for  the  taking  of  the  depositions, 
shall  not  exceed  sixty  days  from  the  day  of  election. 

"  Sec.  43.  The  party  whose  election  is  contested,  may  select  another 
justice  of  the  peace  to  attend  at  the  trial.  Should  the  party  whose 
election  is  contested,  refuse  or  neglect  to  select  a  justice,  as  aforesaid, 
the  justice  chosen  by  the  person  contesting  the  election,  as  aforesaid, 
shall  make  such  selection  for  him.  The  two  justices  so  elected  or  cho- 
sen, shall  make  choice  of  a  third  justice  ;  and  if  they  cannot  agree  upon 
a  third  justice  to  act  with  them,  they  shall  make  such  selection  by  lot ; 
and  the  three  justices  thus  selected,  or  either  of  them,  shall  have  power, 
and  they  are  hereby  authorized  and  required,  to  issue  subprenas  and 
such  other  process  as  may  be  necessary  to  secure  the  attendance  at  such 
trial,  of  all  persons  whose  testimony  may  be  required  by  either  party, 
in  the  same  manner  as  is  provided  in  other  cases  of  proceedings  before 
justices  of  the  peace. 

"Sec.  44.  The  said  justices,  or  any  one  of  them ,  shall,  in  all  such  cases, 
have  power  to  issue  subpoenas  for  witnesses  to  any  county  in  this  State, 
directed  to  the  sheriff  of  such  county,  who  shall  make  service  and  re- 


ClIAP.  6.]  CONTESTING   ELECTIONS.  315 

turn  as  in  other  cases.  And  any  witness,  duly  subpoenaed,  refusing  or 
neglecting  to  appear  and  testify,  shall,  in  addition  to  the  penalties  other- 
wise imposed  by  law,  forfeit  and  pay  a  fine  of  fifty  dollars,  to  be  recov- 
ered by  action  of  debt,  in  any  court  having  cognizance  thereof,  one-half 
to  the  county,  and  one-half  to  the  person  suing  for  the  same. 

"  Sec.  45.  The  said  justices,  or  any  one  of  them,  may  issue  attach- 
ments for  witnesses  so  neglecting  or  refusing  to  attend,  who  may  be 
brought  before  them  ;  and  at  any  time  before  the  day  for  the  decision 
of  the  question  between  the  contesting  parties,  the  said  justices  shall,  at 
the  request  of  either,  after  giving  notice  to  the  other  party  of  five  days, 
if  resident  in  their  county,  or  ten  days,  if  residing  out  of  their  county, 
proceed  to  take  the  testimony  of  such  witnesses,  to  be  used  in  the  case. 

"  Sec.  46.  If  any  justice  of  the  peace  selected,  as  aforesaid,  to  at- 
tend at  the  taking  of  the  depositions,  shall,  without  reasonable  excuse, 
fail  or  refuse  to  attend  at  the  time  and  place  appointed,  after  having 
undertaken  to  attend,  he  shall  forfeit  and  pay  a  fine  of  fifty  dollars,  to 
be  recovered  by  action  of  debt,  in  any  court  having  cognizance  thereof, 
one  half  to  the  county,  and  the  other  half  to  the  person  who  will  sue 
for  the  same. 

"  Sec.  47.  The  said  justices  shall  hear  and  examine  all  the  evidence 
offered  on  either  side.  If  the  contest  be  respecting  any  county  office, 
they  shall  decide  which  of  the  said  candidates  shall  have  been  duly 
elected,  and  certify  the  same  to  the  clerk  of  the  county  commissioners' 
court  of  the  proper  county,  who  shall  thereupon  make  out  and  deliver 
to  the  successful  party  a  certificate  of  his  election.  If  such  contest  be 
respecting  a  seat  in  the  Senate  or  House  of  Representatives  of  this 
State,  the  said  justices  shall  hear  and  reduce  to  writing,  all  the  testi- 
mony taken  in  the  case,  and  certify  and  transmit  the  same  under  seal, 
together  with  all  other  papers  and  documents  pertaining  to  the  case,  to 
the  speaker  of  the  Senate  or  House  of  Representatives,  as  the  case 
may  be. 

"  Sec.  48.  No  testimony  shall  be  heard  by  the  said  justices  on  the 
part  of  the  person  contesting  the  election,  which  does  not  relate  to  the 
points  specified  in  the  notice.  Such  justices  shall  have  power  to  appoint 
a  clerk,  and  may  adjourn  from  day  to  day,  until  their  duties  shall  be 
completed.  They  shall  have  the  same  power  to  preserve  order,  and  to 
punish  disorders  and  contempts,  as  justices  of  the  peace  may  exercise, 
when  holding  court, 

"Sec.  49.  In  all  contests  for  county  offices,  in  which  the  justices 
hearing  the  case  are  authorized  to  decide,  they  shall  enter  judgment  on 


316  CONTESTING    ELECTIONS.  [PART  3, 

the  docket  of  the  justice  last  chosen,  for  all  the  costs  of  such  contest, 
against  the  unsuccessful  party,  upon  which  execution  may  issue  as  in 
other  cases.  Either  party  may  appeal  from  the  decision  of  such  jus- 
tices to  the  circuit  court,  as  in  other  cases  of  appeal  from  the  judgment 
of  a  justice  of  the  peace,  the  decision  of  which  court  shall  be  final. 

"  Sec.  50.  In  all  contests  other  than  for  county  offices,  the  proceed- 
ings for  taking  testimony  hereinbefore  provided,  may  be  had  in  such 
county  in  which  it  is  necessary  to  take  testimony,  and  the  like  returns 
shall  in  each  case  be  made.  In  those  cases  in  which  the  justices  ex- 
amining, do  not  decide  the  contest,  they  shall  not  be  compelled  to  cer- 
tify or  transmit  the  testimony  and  documents  pertaining  to  the  case, 
until  the  reasonable  costs  of  the  examination  and  of  certifying  the  same, 
are  tendered  or  paid ;  and  the  party  who  is  finally  unsuccessful  shall 
be  liable  for  such  costs,  to  the  person  who  shall  have  paid  the  same. 
But  if  neither  party  shall  require  or -cause  such  testimony  and  docu- 
ments to  be  transmitted,  then  judgment  may  be  entered  and  execution 
had,  as  before  provided,  against  the  party  at  whose  instance  such  ex- 
amination was  instituted. 

Form  of  Notice  to  be  given  by  candidate  desiring  to  contest  an  election. 

Sir:  You  will  please  take  notice  that  as  a  candidate  for  the  office 

of  county  judge,  at  the  late  election  for  the  county  of in  the  State 

of  Illinois,  I  intend  to  contest  your  right  to  bold  and  exercise  the  office  of 
county  judge  of  said  county,  and  that  the  following  are  the  points  upon 
which  your  election  will  be  contested,  to  wit:  (Here  state  the  points.} 

And  that  L.  M.,  Esquire,  one  of  the  justices  of  the  peace  of  the  said 

county  of ,  will  attend  at  the  trial  of  such  contest,  on  the day  of 

,  18 — ,  at ,  in  the  forenoon,  at  his  office  in ,  in 

said  county,  in  pursuance  of  the  statute  in  such  case  made  and  provided. 

Dated  this day  of ,  18—.  Yours,  &c.         A.  B. 

To  Mr.  C.  D. 

If  depositions  are  to  be  taken,  the  time  and  place  of  taking  the 
same  should  be  set  forth  in  the  notice. 

Form  of  Subpoena  for  Witnesses. 

STATE  OF  ILLINOIS,  ) 
COUNTY,       }  SJ 

The  People  of  the  State  of  Illinois  to  G.  H.  and  J.  K. 

You  are  hereby  commanded  to  appear  before  the  undersigned,  three 
justices  of  the  peace  of  said  county,  on  the day  of instant, 


ClIAP.  6.]  CONTESTING    ELECTIONS.  317 

at o'clock  —  M.,  at  the  office  of  L.  M.,  in ,  in  said  county, 

to  testify  the  truth,  according  to  your  knowledge,  touching  the  mat- 
ters relative  to  contesting  the  right  of  C.  D.  to  hold  and  exercise  the 
office  of  county  judge  of  said  county  by  A.  B.,  on  the  part  of  the  said 
A.  B.,  and  this  you  are  not  to  omit. 

Given  under  our  hands  and  seals,  this day  of ,  18 — . 

L.  M.,  J.  P.  [SEAL.] 
N.  0.,  J.  P.  [SEAL.] 
P.  Q.,  J.  P.  [SEAL.] 

Form  of  Oath  to  be  administered  to  Witnesses. 

You  do  swear,  that  the  evidence  you  shall  give  touching  the  matters 
relative  to  the  right  of  C.  D.  to  hold  the  office  of  county  judge,  of  Lake 
county,  contested  by  A.  B.,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth. 

Form  of  Certificate  of  Election,  or  Record  of  Proceedings  by  Justices. 


STATE  OF  ILLINOIS, 
COUNTY 


)IS,) 

'  >•  ss. 


Be  it  remembered  that  we,  L.  M.,  N.  0.,  and  P.  Q.,  three  of  the  jus- 
tices of  the  peace  of  the  said  county,  were  duly  named,  elected  and  chosen 

to  attend  on  the day  of instant,  at o'clock  in  the 

noon,  at  the  office  of  L.  M.,  in  ,  in  said  county,  at  the  trial  of 

the  right  of  C.  D.  to  hold  and  exercise  the  office  of  county  judge  of  the 

said  county  of ,  contested  by  A.  B.,  a  candidate  for  the  said  office 

at  the  last  election,  in  the  following  manner  :  that  the  said  L.  M.  was 
named  and  selected  by  the  said  A.  B.,  that  the  said  N.  0.  was  selected 
by  said  C.  D.,  and  that  the  said  P.  Q.  was  chosen  (or  "  selected  by 
lot,")  by  the  two  justices  first  named  and  selected,  and  herein  first  above 
mentioned,  to  act  with  them;  that  we  met  at  the  time  and  place  above 
mentioned,  and  the  following  notice  and  attestation  of  service  thereof 
was  delivered  to  us.  (Here  set  forth  the  notice  given  by  A.  B.  to  C. 
D.,  and  the  affidavit  of  service.}  That  at  the  time  and  place  aforesaid, 
as  well  the  said  A.  B.  as  the  said  C.  D.,  appeared  before  us,  and  after 
hearing  and  examining  the  evidence  offered  by  both  of  the  parties,  we 
do  decide  and  determine  that  the  said  A.  B.  has  been  duly  elected 
county  judge  of  the  said  county  of ,  and  we  do  adjudge  and  de- 
termine, that  the  said  C.  D.  pay  all  the  costs  of  this  contest,  amounting 
to  the  sum  of dollars,  and  that  execution  issue  for  the  same. 


318  CONTESTING    ELECTIONS.  [PART    3, 

111  witness  whereof  we  do  hereunto  set  our  hands  and  seals  the 

day  of ,  18—. 

L.  M.,  /.  P.  [SEAL.] 
N.  0.,  /.  P.  [SEAL.] 
P.  Q.,  /.  P.  [SEAL.] 

Form  of  Certificate  to  be  attached  to  the  foregoing  Record. 

STATE  OF  ILLINOIS,  ) 
COUNTY,    f* 

We,  the  subscribers,  three  of  the  justices  of  the  peace  of  the  said 
county,  do  certify  to  the  clerk  of  the  county  commissioners'  court 
of  the  said  county,  that  the  above  is  a  true  record  of  the  proceed- 
ings before  us,  and  of  our  decision  in  the  matter,  relative  to 
the  right  of  C.  D.  to  hold  and  exercise  the  office  of  county  judge 

of  county,  contested  by  A.  B.,  and  also  of  our  adjudication 

concerning  costs. 

Given  under  our  hands,  this day  of  ,  18 — . 

L.  M.,  J.  P. 

N.  0.,  /.  P. 

P.  Q.,  J.  P. 

Form  of  Execution  for  Costs. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      j  Sf 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 

GREETING  : 

Whereas,  A.  B.,  a  candidate,  lately  gave  notice  to  C.  D.,  that  he 
intended  to  contest  his  right  to  hold  and  exercise  the  office  of  county 

judge  of  the  county  of ,   and  named  L.  M.,  a  justice  of  the 

peace  of  said  county,  to  attend  at  the  trial  of  such  contest,  on  the 

day  of ,  18 — ,  at  his  office  in  ,  in   said  county  ; 

and  whereas,  the  said  C.  D.,  did  select  N.  0.,  a  justice  of  the  peace  of 
said  county,  to  attend  at  the  said  trial ;  and  whereas,  the  two  justices 
so  named  and  selected,  did  make  choice  of  (or  "  select  by  lot,")  P.  Q., 
a  justice  of  the  peace  of  said  county,  to  act  with  them ;  and  whereas, 
the  said  justices  in  pursuance  of  their  nomination,  selection  and  choice, 
and  of  the  statute  in  such  case  made  and  provided,  met  at  the  time 
and  place  above  mentioned,  and  as  well  the  said  A.  B.,  as  the  said 
C.  D.,  appeared  before  them,  and  the  said  justices  having  heard  and 


ClIAP.  6.]  CONTESTING  ELECTIONS.  319 

examined  the  evidence  offered  by  both  of  the  parties,  did   decide   and 
determine  that  the  said  A.  B.,  had  been   duly  elected  county  judge  of 

county,  and  the  said  justices  did  adjudge  and  determine  that 

the  said  C.  D.  pay  all  the  costs  of  the  said  contest,  amounting  to  the 

sum  of dollars,  and  that  execution  issue  for  the  same  : 

We,  therefore,  command  you,  that  of  the  goods  and  chattels  of  the 

said  C.  D.,  in  your  county,  you  levy  the  said  sum  of dollars,  costs, 

as  aforesaid  ;  and  do  you  make  return  of  what  you  shall  do  hereon, 
with  all  convenient  speed. 

Given  under  the  hands  and    seals   of  the  said  justices,  the 

day  of ,  18—. 

L.  M.,  J.  P.  [SEAL.] 
N.  0.,  J.  P.  [SEAL.] 
P.  Q.,  J.  P.  [SEAL.] 


320  ESTRAYS.  [PART  3, 


CHAPTER    VII. 

OF  ESTRAYS. 

Rev.  Stat.  227,  Sec.  1.  "  Every  person  who  shall  take  up  any 
estray  horse,  mare,  colt,  mule,  or  ass,  after  having  given  not  less  than 
ten,  nor  more  than  fifteen  days'  notice,  by  posting  up  notices  in  three 
of  the  most  public  places  in  the  justice's  district  in  which  he  resides, 
shall  take  the  same  before  some  justice  of  the  peace  of  the  county 
where  such  estray  shall  be  taken  up,  and  make  oath  before  such 
justice,  that  the  same  was  taken  up  at  his  or  her  plantation,  or  place 
of  residence  in  said  county,  and  that  the  marks  or  brands  have  not 
been  altered  since  the  taking  up. 

"  Sec.  2.  The  said  justice  shall  then  issue  his  warrant  to  three 
disinterested  housekeepers  in  the  neighborhood,  unless  they  can  other- 
wise be  had,  causing  them  to  come  before  him,  to  appraise  said  estray, 
after  they  or  any  two  of  them  being  sworn  to  appraise  such  estray, 
without  partiality,  favor,  or  affection ;  which  appraisement,  together 
with  the  marks,  brands,  stature,  color  and  age  of  such  horse,  mare  or 
colt,  mule,  or  ass,  shall  be  entered  in  a  book  to  be  kept  by  such 
justice,  and  certified  under  his  hand,  and  transmitted  to  the  clerk  of 
the  county  commissioners'  court  of  such  county,  within  fifteen  days 
after  the  same  is  taken  up. 

"  Sec.  3.  Any  person  who  shall  take  up  any  head  of  neat  cattle, 
sheep,  hog,  or  goat,  after  having  given  the  notice  required  in  section 
oae  of  this  chapter,  shall  go  with  some  householder  before  a  justice  of 
the  peace  of  the  county,  and  make  oath  before  him,  as  is  required  in 
taking  up  an  estray  horse,  mare,  or  colt,  mule,  or  ass,  and  then  such 
justice  shall  take  from  such  housekeeper  upon  oath,  a  particular 
description  of  the  marks,  brands,  color  and  age  of  every  such  neat 
cattle,  sheep,  hog,  or  goat,  and  said  justice  shall  cause  the  said  estrays 


CHAP.  7.]  ESTRAYS.  321 

to  bo  appraised  in  like  manner  as  is  required  to  be  done  in  case  of  a 
horse,  mare  or  colt,  mule  or  ass ;  which  description  and  valuation 
shall  be  entered  by  such  justice  in  a  book  to  be  kept  by  him  as  afore- 
said, and  by  such  justice  transmitted  to  the  clerk  of  the  county  com- 
missioners' court  of  the  county,  to  be  by  him  kept  as  before  directed  : 
Provided,  That  in  all  cases  where  the  value  of  such  neat  cattle,  sheep, 
goat,  or  hog,  does  not  exceed  five  dollars,  said  justice  shall  not  be 
required  to  make  a  return  to  the  clerk  as  aforesaid ;  but  shall  enter  in 
his  estray  book  the  description  and  appraisement  value  of  such  sheep, 
hog,  or  goat,  and  advertise  the  same  in  three  of  the  most  public  places 
in  his  neighborhood. 

"  Sec.  4.  Every  such  clerk  shall  cause  a  copy  of  such  descrip- 
tion and  valuation  of  every  neat  cattle,  sheep,  hog,  and  goat  returned 
to  him,  to  be  publicly  affixed  at  the  court  house  door  of  his  county, 
within  five  days  after  the  same  shall  be  transmitted  to  him  as  aforesaid, 
for  which  he  shall  receive  the  same  fee  as  for  entering  the  same  in  a 
book, 

"  Sec.  5.  If  two  or  more  estray s  of  the  same  species  are  taken  up 
by  the  same  person  at  the  same  time,  they  shall  bo  included  in  one 
entry  and  one  advertisement,  and  in  such  case,  such  justice  and  clerk 
shall  receive  no  more  pay  than  for  one  of  such  species. 

"  Sec.  6.  No  person  shall  be  allowed  hereafter  to  take  up  and 
post  any  head  of  neat  cattle,  sheep,  hog,  or  goat,  between  the  month 
ft-  Aprif  and  the  first  day  of  November,  unless  the  same  may  be  found 
in  the  lawful  fence  or  inclpsure  of  the  taker  up,  having  broken  in  the 
same  ;  and  for  a  rewaM  of  taking  up,  there  shall  be  paid  by  the  owner, 
one  dollar  for  every  horse,  mare  or  coW,  mule  or  ass ;  and  for  every 
head  of  neat  cattle,  fifty  cents ;  and  for  every  hog,  sheep,  or  goat, 
twenty-five  cents,  together  with  all  reasonable  charges. 

"  Sec.  7.  Proof  of  the  giving  of  notice,  as  required  in  the  first  and 
third  sections  of  this  chapter,  may  be  made  by  the  oath  of  the  person 
advertising,  or  a  credible  witness,  previous  to  the  appraisement. 

"  Sec.  8.  If  the  owner  of  any  such  animals  shall  prove  and  take 
them  away  before  the  appraisement  thereof,  he  shall  pay  io  >the  person 
who  has  care  of  the  same,  all  reasonable  charges  for  taking  up  and 
keeping  the  same. 

"  Sec.  9.  It  shall  not  be  lawful  for  persons  taking  up  estrays,  to 
use  the  same  previous  to  advertising  them,  unless  it  be  to  milk  cows, 
and  the  like,  for  the  benefit  and  preservation  of  such  animals. 

"  Sec.  10.     It  shall  be  the  duty  of  the  clerk  of  the  county  cominis- 

20 


322  ESTRAYS.  [PART  3, 

sioners'  court,  when  the  description  and  valuation  of  any  estray  horse, 
mare  or  colt,  mule  or  ass,  shall  be  transmitted  to  him  by  the  justice,  as 
aforesaid,  and  in  ten  days  thereafter  make  out  a  copy  thereof,  and  trans- 
mit the  same  to  the  public  printer  of  the  State,  and  endorse  thereon, 
"  Estray  papers,"  together  with  the  sum  of  one  dollar,  to  pay  the  said 
printer ;  which  sum  the  taker  up  is  required  to  deposit  with  the  clerk 
prior  to  the  expiration  of  said  ten  days.  It  shall  be  the  duty  of  the 
public  printer  to  publish  said  advertisement,  and  transmit  one  copy  of 
each  number  of  his  paper  to  each  of  the  clerks  of  the  county  commis- 
sioners' court  of  the  several  counties  of  this  State,  free  of  charge,  which 
shall  be  regularly  filed  by  said  clerks  in  their  respective  offices,  for  the 
examination  of  those  who  may  desire  it. 

"  Sec.  11.  And  if  no  owner  appear  and  prove  his  property  within 
one  year  after  such  publication,  the  property  shall  be  vested  in  the 
taker  up  ;  nevertheless,  the  former  owner  may,  at  any  time  thereafter, 
by  proving  his  property,  recover  the  valuation  money,  upon  payment 
of  costs  and  all  reasonable  charges. 

"  Sec.  12.  And  if  any  person  shall  trade,  sell  or  take  away  any 
such  estray  or  estrays  out  of  the  State,  for  any  purpose  whatever,  before 
the  expiration  of  said  one  year,  he  or  she  so  offending,  shall  be  liable  to 
indictment  in  the  circuit  court  of  the  proper  county,  and  on  conviction 
thereof,  shall  be  fined  in  a  sum  double  the  value  of  the  property,  one- 
half  to  the  owner  thereof,  and  the  other  half  to  the  county  treasury ; 
and  when  the  owner  of  any  estray  head  of  neat  cattle,  sheep,  hog  or 
goat,  does  not  prove  his  property  within  twelve  months  after  the  same 
has  been  published  at  the  door  of  the  court  house,  as  aforesaid,  and 
when  the  valuation  does  not  exceed  five  dollars,  the  property  shall  be 
vested  in  the  taker  up ;  but  when  the  valuation  shall  exceed  five  dollars, 
and  no  owner  appear  within  the  time  aforesaid,  the  property  shall  also  be 
vested  in  the  taker  up ;  nevertheless,  the  former  owner  may  at  any 
time,  by  proving  his  property,  recover  the  valuation  thereof,  upon  pay- 
ment of  all  reasonable  costs  and  charges ;  and  if  the  taker  up  and  the 
owner  cannot  agree  upon  the  charges,  they  shall  call  upon  three  disin- 
terested householders,  whose  decision  shall  be  binding  on  both  parties ; 
and  it  shall  not  be  lawful  for  any  person  to  take  up  any  estray,  (except 
such  as  shall  be  hereinafter  excepted,)  unless  he  shall  be  a  freeholder 
or  a  housekeeper. 

"Sec.  13.  Any  person  finding  a  stray  horse,  mare,  colt,  mule  or 
ass,  running  at  large  without  any  of  the  settlements  of  this  State,  may 
take  up  the  same,  and  shall  immediately  take  such  estray  or  estrays  be- 


CHAP.  7.  ESTRAYS.  323 

fore  the  nearest  justice  of  the  peace,  and  make  oath  that  he  has  not 
altered  the  marks  or  brands  of  such  estray,  since  taking  up ;  and  if 
such  taker  up  shall  be  a  freeholder  or  housekeeper  within  that  county, 
it  may  and  shall  be  lawful  for  him,  to  post  such  estray  or  estrays  as 
hereinbefore  directed  in  this  chapter,  as  if  the  same  had  been  taken  up 
on  his  plantation  or  place  of  residence ;  and  when  the  taker  up  shall 
not  be  qualified,  as  aforesaid,  he  shall  take  the  oath  before  required,  and 
deliver  such  estray  or  estrays  to  the  said  justice,  who  shall  cause  the 
same  to  be  dealt  with  as  directed  by  this  chapter. 

"  Sec.  14.  If  no  owner  appear  to  prove  his  property  within  one 
year,  such  estray  or  estrays  shall  be  sold  to  the  highest  bidder,  giving 
public  notice  of  such  sale  twenty  days  previous  thereto,  the  purchaser 
giving  a  bond  and  approved  security,  payable  to  the  county  commis- 
sioners' court  of  the  county  where  such  estray  shall  be  taken  up ;  and, 
after  paying  the  taker  up  all  reasonable  charges,  the  balance  shall  be 
put  into  the  county  treasury  by  the  said  justice,  who  shall  take  a  receipt 
for  the  same  from  the  county  treasurer ;  nevertheless,  the  former  owner, 
at  any  time  within  two  years  after  taking  up,  by  proving  his  property 
before  the  clerk  of  the  county  commissioners'  court  of  said  county,  or 
before  the  justice  of  the  peace  before  whom  the  property  was  taken  up, 
and  obtaining  a  certificate  thereof,  from  the  clerk  of  said  court  or  justice 
of  the  peace,  to  the  treasurer,  shall  receive  the  balance  aforesaid. 

"  Sec.  15.  And  when  any  justice  of  the  peace  shall  fail  to  pay  any 
money  for  any  estray  or  estrays,  to  be  sold  agreeably  to  this  chap- 
ter, into  the  county  treasury,  within  three  months  after  selling  such 
estray  or  estrays,  such  justice  shall  forfeit  and  pay  the  sum  of  twenty 
dollars  with  costs,  to  be  recovered  by  action  of  debt,  before  any 
justice  of  the  peace  of  the  county,  or  other  court  having  jurisdiction 
thereof,  the  one-half  for  the  use  of  the  county,  and  the  other  half 
for  the  use  of  any  person  suing  for  the  same ;  and  moreover,  be  liable 
to  pay  the  price  of  such  estray  or  estrays,  with  interest  thereon. 

"  Sec.  16.  If  any  estray  or  estrays,  taken  up  as  aforesaid,  shall 
die  or  get  away  before  the  owner  shall  claim  his  or  her  right,  the 
taker  up  shall  not  be  liable  for  the  same ;  and  if  any  person  shall 
take  up  any  estray  or  estrays,  at  any  other  place  within  the  inhabit- 
ed parts  of  this  State,  than  his  or  her  plantation  or  place  of  resi- 
dence, or  without  being  qualified  as  required  by  this  chapter,  he  shall 
forfeit  and  pay  the  sum  of  ten  dollars  with  costs,  recoverable  before 
any  justice  of  the  peace  of  the  county  where  the  offense  shall  have 
been  committed,  and  not  having  property  sufficient  to  pay  such  fine, 


324  ESTKAYS.  PART  3, 

he  shall  he  liable  to  he  confined  one  month  in  the  jail  of  the  county 
where  he  may  be  found,  being  found  guilty  of  such  offense  accord- 
ing to  law ;  and  any  person  taking  up  any  estray  or  estrays  out  of 
the  limits  of  the  settlements  of  this  State,  and  failing  to  comply  with 
the  requisitions  of  this  chapter,  shall  be  liable  to  the  same  penalties ; 
and  if  any  person,  taking  up  any  estray  or  estrays  of  any  species, 
fail  to  comply  with  the  requisitions  of  this  chapter,  he  shall,  for 
every  such  offense,  forfeit  and  pay  to  the  informer,  the  sum  of  ten 
dollars  with  costs,  recoverable  before  any  justice  of  the  county  where 
such  offense  shall  be  committed,  one-half  to  the  use  of  the  county, 
and  the  other  half  to  the  use  of  the  person  suing  for  the  same. 

"Sec.  17.  If  any  person  or  persons  shall  hereafter  stop  or  take  up 
any  keel,  or  flat  boat,  ferry  flat,  batteau,  pirogue,  canoe,  or  other  ves- 
sel or  water  craft,  or  raft  of  timber,  or  plank  found  adrift  on  any  water 
course  within  the  limits  or  upon  the  borders  of  this  State,  and  the  same 
shall  be  of  the  value  of  five  dollars  or  upwards,  it  shall  be  the  duty  of 
such  person  or  persons,  within  five  days  thereafter,  (provided  the  same 
shall  not,  before  that  time,  be  proven  and  restored  to  the  owner,)  to  go 
before  some  justice  of  the  peace  of  the  proper  county,  and  make  affi- 
davit in  writing,  setting  forth  the  exact  description  of  such  vessel  or 
craft,  when  and  where  the  same  was  found,  whether  any,  and  if  so, 
what  cargo  was  found  on  board,  and  that  the  same  has  not  been  altered 
or  defaced,  either  in  whole  or  in  part,  since  the  taking  up,  either  by  him, 
her,  or  them,  or  by  any  other  person  or  persons,  to  his,  her,  or  their 
knowledge ;  and  the  said  justice  shall  thereupon  issue  his  warrant, 
directed  to  some  constable  of  his  county,  commanding  him  forthwith, 
to  summon  three  respectable  householders  of  the  neighborhood,  if  they 
cannot  otherwise  be  had,  whose  duty  it  shall  be,  after  being  sworn  by 
said  justice,  to  proceed  without  delay,  to  examine  and  appraise  such 
boat  or  vessel,  and  cargo,  if  any,  and  make  report  thereof,  under  their 
hands  and  seals,  to  the  justice  issuing  such  warrant,  who  shall  enter 
such  appraisement,  together  with  the  affidavit  of  the  taker  up,  at  large, 
in  his  estray  book ;  and  it  shall  be  the  further  duty  of  said  justice, 
within  ten  days  after  the  said  proceedings  shall  have  been  entered  in 
his  estray  book  as  aforesaid,  to  transmit  a  certified  copy  thereof,  to  the 
clerk  of  the  county  commissioners'  court  of  his  county,  to  be,  by  him 
recorded  in  his  estray  book,  and  filed  in  his  office. 

"  Sec.  18.  In  all  cases  where  the  appraisement  of  such  boat  or 
water  craft,  including  her  cargo,  shall  not  exceed  the  sum  of  twenty 
dollars,  the  taker  up  shall  advertise  the  same  on  the  door  of  the  court 


ClIAP.    7.]  ESTRATS.  325 

house,  and  in  three  of  the  most  public  places  in  the  county,  within  ten 
days  after  the  justice's  said  certificate  shall  have  been  entered  on  the 
records  of  the  county  commissioners'  court;  and  if  no  person  shall 
appear  to  prove  and  claim  such  boat  or  water  craft,  within  six  months 
from  the  time  of  taking  up  as  aforesaid,  the  property  in  the  same  shall 
vest  in  the  taker  up  ;  but  if  the  value  thereof  shall  exceed  the  sum  of 
twenty  dollars,  it  shall  be  the  duty  of  the  clerk  of  the  county  commis- 
sioners' court,  within  twenty  days  from  the  time  of  the  reception  of  the 
justice's  said  certificate  at  his  office,  to  cause  an  advertisement  to  be 
set  up  on  the  door  of  the  court  house,  and  also  a  notice  thereof  to  be  sent 
to  the  public  printer  as  aforesaid,  who  shall  publish  the  same  as  afore- 
said ;  and  if  the  said  vessel  be  not  claimed  and  proven  within  six 
months  from  said  advertisement,  the  same  shall  be  vested  in  the  taker 
up  ;  nevertheless  the  former  owner  may,  at  any  time  thereafter,  recover 
the  valuation  money,  by  proving  his  property  and  allowing  to  the  taker 
up  a  reasonable  compensation  for  his  trouble,  and  costs,  and  charges. 

Sec.  19.  In  all  cases  where  services  shall  be  performed  by  any  offi- 
cers or  other  person  or  persons  under  this  chapter,  the  following  fees  or 
compensation,  shall  be  allowed,  to  wit :  To  the  justice  of  the  peace,  for 
administering  oath  to  the  taker  up  or  finder,  making  an  entry  thereof, 
with  report  of  the  appraisers  and  making  and  transmitting  a  certificate 
thereof  to  the  clerk  of  the  county  commissioners'  court,  fifty  cents  ;  to 
the  clerk  or  justice  for  taking  proof  of  the  ownership  of,  and  granting  a 
certificate  of  the  same,  twenty-five  cents ;  for  registering  each  certifi- 
cate transmitted  to  him  by  any  justice  as  aforesaid,  twelve  and  a  half 
cents ;  for  advertisements,  including  the  newspaper  publications,  fifty 
cents  in  addition  to  the  cost  of  such  publication  ;  to  the  constable  for 
each  warrant  so  served  on  appraisers,  twenty-five  cents ;  and  to  each 
appraiser,  the  sum  of  twenty-five  cents  ;  which  said  fees  shall  be  paid 
by  the  taker  up  to  the  persons  entitled  thereto,  whenever  said  services 
shall  be  rendered.  All  which  costs  and  charges  shall  be  reimbursed  to 
the  taker  up  or  finder,  in  all  cases  where  restitution  of  the  property 
shall  be  made  to  the  owner,  in  addition  to  the  reward  to  which  such 
person  may  be  entitled  for  taking  up  as  aforesaid. 

"  Sec.  20.  If  any  person  shall  act  contrary  to  the  duties  enjoined 
by  this  chapter,  for  which  no  penalty  is  hereinbefore  pointed  out,  the 
person  so  offending  shall,  on  conviction  thereof,  forfeit  and  pay  for 
every  such  offense,  not  less  than  five,  nor  more  than  one  hundred 
dollars,  to  be  sued  for  in  the  name  of  the  proper  county,  before  any 
justice  of  the  peace,  or  other  court  having  cognizance  thereof." 


326  ESTRAYS.  [PART  3, 

Under  the  estray  laws,  a  party  who  has  not  given  the  required 
notice,  cannot  acquire  the  property  by  lapse  of  time,  or  by  possession. 
Neither  could  he  recover  the  property  from  another  in  an  action  of 
trover ;  and  one  who  retains  an  estray  without  giving  notice  as  the 
law  directs,  is  a  tortfeasor.1 

Notice  of  an  IZstray. 

Taken  up  as  an  estray  by  the  subscriber,  at  his  place  of  residence, 

(or  "  plantation,")  in  ,  in  county,  on  the  ' 

day  of ,  18 — ,  a  [sorrel  mare,  four  years  old,  or  thereabouts, 

fifteen  hands  high,  having  a  star  in  her  forehead,  and  branded  with  the 
letters  K.  S.  on  the  left  shoulder,]  which  I  intend  to  have  appraised 
according  to  the  statute  in  such  case  made  and  provided. 

Dated  the day  of ,  18—.  A.  B. 


Oath  of  the  person  taking  up  an  Estray,  and  proof  of  posting 
advertisements. 

Lake  COUNTY,  ) 

Town  (or  "  Precinct ")  of ,  }  Sf 

A.  B.,  of  said  town,  (or  "precinct,")  being  duly  sworn,  deposes 
and  says  that  he  is  a  freeholder  (or  "  housekeeper  ")  of  said  county ; 

that  on  the day  of  ,  18 — ,  at  his  place  of  residence 

(or  "plantation")  in  the  said  county,  he  took  up  an  estray,  a  [sorrell 
mare,]  particularly  described  in  the  advertisement  of  which  the  following 

is  a  copy,  viz.,  (here  insert  the  advertisement) ;   that  on  the  

day  of ,  18 — ,  he  posted  up  copies  of  the  said  advertisement 

in  three  of  the  most  public  places  in  said  town  (or  "  precinct,")  (or  if 
neat  cattle,  &c.,  then  say,  "his  neighborhood")  ;  that  the  marks  or 
brands  of  the  said  mare  have  not  been  altered  since  the  taking  up. 

Subscribed  and  sworn  before  me,  this", 

T        /.  A.  B. 
day  of ,  18 — . 


SHELDON  WOOD,  J.  P. 

(1)  13  111.  65. 


CHAP.  7.]  ESTKAYS.  327 

Form  of  an  Advertisement  when  an  Estray  is  taken  up  without  any 
of  the  settlements,  fyc. 

NOTICE  OP  AN  ESTRAY. 

Taken  up  as  an  estray  by  the  subscriber,  of  the  county  of , 

on  the  day  of  ,  18 — ,  in  the  said  county,  a  [bay 

horse,  six  years  old,  or  thereabouts,  fourteen  hands  high,  having  white 
hind  feet,  branded  with  the  letters  L.  M.  on  the  right  shoulder,] 
running  at  large,  without  any  of  the  settlements  of  this  State  ;  which 
I  intend  to  have  appraised,  according  to  the  'statute  in  such  case  made 
and  provided. 

Dated  the day  of ,  18—.  A.  B. 

Oath  of  the  person  taking  up  an  Estray,  and  proof  of  posting 
the  above  advertisement. 

Lake  COUNTY,  ) 

Town  (or  "Precinct ")  of ,  j  S5 

A.  B.,  of  said  county,  being  duly  sworn,  deposes  and  says  that  he 
is  a  housekeeper,  (or  "freeholder")  (if  the  taker  up  is  not  a  house- 
keeper or  freeholder,  state  according  to  facts)  ;  that  on  the  

day  of ,  18 — ,  in  the  said  county,  he  took  up  an  estray,  a 

[bay  horse,]  particularly  described  in  an  advertisement,  of  which  the 
following  is  a  copy,  (here  insert  the  advertisement);  that  on  the 
day  of  ,  18 — ,  he  posted  up  copies  of  the  said  adver- 
tisement in  three  of  the  most  public  places  in  said  town  (or  "  precinct ") 
and  that  the  marks  or  brands  of  the  said  horse  have  not  been  altered 
since  the  taking  up. 

Subscribed  and  sworn  before  me,  the  ^  A.  B. 

day  of ,  18—. 

J.  BANGS,  J.  P. 


Form  of  Appointment  of  Appraisers. 

To  E.  F.,  G.  H.,  and  L  J.,  three  housekeepers  in  the  neighborhood 

of  A.  B.,  in ,  in  the  county  of : 

Whereas  A.  B.  has  made  application  before  me,  the  subscriber,  one 
of  the  justices  of  the  peace  in  and  for county,  for  the  appoint- 
ment of  three  disinterested  housekeepers  in  the  neighborhood,  to 
appraise  a  [sorrell  mare,]  taken  up  by  him  as  an  estray,  at  his  place  of 


328  ESTRAYS.  [PART  3, 

residence,  (or  "  plantation  ")  in  said  county,  and  proved  before  me 
that  he  posted  up  written  advertisements  of  the  taking  up  ten  days 
previous  to  the  making  of  said  application  : 

This  is  therefore  to  appoint  you  to  appear  before  me  forthwith,  (or 

"on  the   day  of  ,  18 — ,   at  o'clock  in  the  

noon,")  and  after  being  duly  sworn,  to  appraise  the  said  estray,  and 
to  report  to  me  your  appraisement. 

Witness  L.  M.,  Esquire,  a  justice  of  the  peace  in ,  in  said 

county,  the day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 

Form  of  Warrant  for  Appraisers. 

Lake  COUNTY, 
Town  (or  "  Precinct ")  of 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County  : 
Whereas,  A.  B.  has  made  application  before  L.  H.  Bute,  Esquire,  one 
of  the  justices  of  the  peace  of  the  said  county,  for  the  appointment  of 
three  disinterested  housekeepers  in  the  neighborhood,  to  appraise  a  [sor- 
rell  mare,]  taken  up  by  him  as  an  estray,  at  his  residence,  (or  "  planta- 
tion,") in  said  county,  and  proved  before  the  said  justice  that  he  had 
posted  up  written  advertisements  of  the  taking  up  ten  days  previous  to 
the  making  of  said  application  ;  and,  whereas,  it  has  been  made  satis- 
factorily to  appear  to  the  said  justice,  by  the  oath  of  the  said  A.  B., 
that  appraisers  cannot  be  had  without  a  warrant  for  that  purpose : 

We,  therefore,  command  you  to  cause  E.  F.,  G.  H.  and  I.  J.  per- 
sonally to  appear  before  the  said  justice  forthwith,  (or  "on  the 

day  of ,  18 — ,  at o'clock  in  the noon,")  at  his  office, 

in ,  to  appraise,  under  oath,  the  said  estray,  and  report  to  him 

the  said  appraisement. 

In  witness  whereof  the  said  justice  has  hereunto  set  his  hand  and 

seal,  this day  of ,  18 — . 

L.  H.  BUTE,  J.  P.     [SEAL.] 

Form  of  Oath  or  Affirmation  of  Appraisers. 

You,  and  each  of  you,  do  swear,  (or  "  you  do  solemnly,  sincerely 
and  truly  declare  and  affirm,")  that  you  will  appraise  the  [horse]  now 
shown  to  you  as  an  estray,  taken  up  by  A.  B.,  without  partiality,  favor, 
or  affection. 


CHAP.  7.]  ESTKATS.  329 

Form  of  Report  of  Appraisement. 


-, }  SS> 


Lake  COUNTY, 
Town  (or  "  Precinct ")  of  • 

We,  the  undersigned,  housekeepers  in  said  town,  (or  "  precinct,") 
appraisers,  appointed  and  sworn  by  L.  M.,  Esquire,  one  of  the  justices 
of  the  peace  of  said  county,  do  respectfully  report  to  you,  the  said  jus- 
tice, that  we  have  examined  a  [bay  horse,  six  years  old,  or  thereabouts, 
fourteen  hands  high,  having  white  hind  feet,  and  branded  with  the  let- 
ters L.  M.  on  the  right  shoulder,]  shown  to  us  as  an  estray,  taken  up 

by  A.  B.,  and  have  appraised  the  said  horse  at  the  sum  of 

dollars. 

Dated  this day  of ,  18 — . 

E.  F.  [SEAL.] 
G.  H.  [SEAL.] 
I.  J.  [SEAL.] 

Form  of  Entry  to  be  made  by  Justice  on  Estray  Book. 

Lake  COUNTY,  ) 

Town  (or  "  Precinct ")  of ,  j  Ss 

Be  it  remembered  that  on  the day  of ,  18^-,  A.  B.  of 

said  county  appeared  before  me,  L.  M.,  Esquire,  a  justice  of  the  peace 
of  the  said  county,  and  took  and  subscribed  the  following  oath,  viz  : 
(set  out  the  oath  at  length)  ;  that  I  did  thereupon  appoint  (or  "cause") 
E.  F.,  Gr.  H.  and  I.  J.,  three  disinterested  housekeepers  of  the  neigh- 
borhood, to  come  before  me  forthwith,  (or  "on  the day  of , 

18 — ,)  to  appraise  the  said  estray,  and  report  to  me  their  appraise- 
ment :  who  did  thereupon,  forthwith  (or  "  on  the day  of , 

18 — )  appear,  and  having  been  by  me  duly  sworn  to  appraise  the  said 
estray  without  partiality,  favor  or  affection,  did  appraise  the  same  and 
report  to  me  their  appraisement,  in  the  words  following,  viz  :  (here  in- 
sert the  report  at  length.*) 

In  witness  whereof  the  said  justice  of  the  peace  has  hereunto  set  his 

hand  and  seal,  the day  of  — : — ,  18 — . 

L.  M.,  J.  P.     [SEAL.] 

A  copy  of  the  above  should  be  transmitted  to  the  clerk  in  all  cases, 
(except  in  case  of  neat  cattle,  sheep,  hogs,  and  goats,  when  the  valua- 
tion does  not  exceed  five  dollars,)  and  certified  as  follows,  viz  : 


330  ESTRAYS.  [PART  3, 

Lake  COUNTY,  ") 

Town  (or  "  Precinct ")  of ,  j  " 

I,  L.  M.,  one  of  the  justices  of  the  peace  in  and  for  the  said  county, 
do  hereby  certify  that  the  above  is  a  true  copy  of  the  proceedings  in 
relation  to  the  estray  therein  described,  as  entered  by  me  on  my  estray 

book. 

Dated  this day  of ,  18—. 

L.  M., 
Justice  of  the  Peace. 


Form  of  Advertisement  of  Neat  Cattle,  dec.,  by  the  justice,  valuation 
not  exceeding  Jive  dollars. 

NOTICE   OF   AN   ESTRAY. 

Taken  up,  as  an  estray,  by  A.  B.,  of county,  on  the 

day  of ,  18 — ,  (describe  the  estray,)  which  has  been  appraised 

at  the  sum  of dollars,  by  three  appraisers,  appointed  and  sworn 

by  me. 

Dated  the day  of ,  18 — . 

L.  M., 
Justice  of  the  Peace. 


Form  of  Affidavit  by  taker  up  of  water  craft. 

STATE  OF  ILLINOIS,  ) 
COUNTY,     f  K 

A.  B.,  of  said  county,  being  duly  sworn,  deposes  and  says  that  on 
day  of  ,  18 — ,  (here  state  particularly  where  the  boat 


was  found,  and  give  an  exact  description  of  the  craft,  whether  any, 
and  if  so,  what  kind  of  cargo  was  found  on  board,)  that  he  then  and 
there  took  up  the  said  boat ;  and  that  the  same  has  not  been  altered 
nor  defaced  either  in  whole  or  in  part  since  the  taking  up,  either  by  him 
or  any  other  person  or  persons,  to  his  knowledge. 

Subscribed  and  sworn  to  before  |  A.  B. 

me,  this  —  day  of — ,  A.  D.  18 — .  > 
L.  M.,  /.  P.     J 


CHAP.  7.]  ESTRAYS.  331 

Form  of  a  Warrant  to  summon  Appraisers. 

STATE  OP  ILLINOIS,  ) 
COUNTY,      |  ss 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : 

Whereas,  A.  B.,  of  said  county,  has  on  the day  of , 

185-,  made  affidavit  in  writing,  before  L.  M.  Esquire,  one  of  the  justices 

of  the  peace  of  the  said  county,  that  on  the ,  day  of ,  185—,  he 

found  adrift  on  the river  a  (here  describe  the  craft  as  in  the  affi- 
davit,'} and  then  and  there  took  up  the  same  : 

You  are,  therefore,  hereby  commanded  to  summon  three  respectable 
householders  of  the  neighborhood  to  appear  forthwith  before  me,  to  be 
by  me  duly  sworn  to  examine  and  appraise  said  flat  boat. 

Witness  L.  M.,  Esquire,  justice  of  the  peace,  at in  said  county, 

this day  of ,  185-.  L.  M., 

Justice  of  the  Peace. 

Oath  of  Appraisers. 

You,  and  each  of  you,  do  solemnly  swear  that  you  will,  without  par- 
tiality, favor  or  affection,  examine  and  appraise  a  flat  boat  taken  up 
adrift  by  A.  B.,  of county,  and  make  a  true  report  thereof. 


Report  of  Appraisers. 


STATE  OF  ILLINOIS, 
COUNTY 


ts, ) 
>  ss. 


.  We,  the  undersigned,  householders  of  said  county,  appraisers  appointed 
and  sworn  by  L.  M.,  one  of  the  justices  of  the  peace  in  and  for  the  said 
county,  do  respectfully  report  that  we  have  examined  a  flat  boat,  (de- 
scribe the  boat,}  shown  to  us  as  the  one  found  adrift  on  the river, 

and  taken  up  by  A.  B.  of  said  county,  and  have  appraised  said  flat 

boat  at  the  sum  of dollars,  (if  it  be  a  boat  and  cargo,  then  add) 

and  we  do  further  report,  that  we  have  appraised  the  cargo  of  said  boat 
as  follows,  viz : 

10  Barrels  of  flour, $40,00. 

50  Bushels  of  potatoes 12,00. 

In  witness  whereof,  we  have  this day  of ,  185-,  set 

our  hands  and  seals.  E.  F.     [SEAL.] 

G.  H.     [SEAL.] 
I.  J.      [SEAL.] 


332  ESTRAYS.  [PART  3, 

Form  of  Entry  by  a  justice  in  his  estray  book  in  case  of  taking  up 
ivater  craft. 

STATE  OF  ILLINOIS,  ) 

COUNTY,      j  SJ 

Be  it  remembered  that  on  the day  of ,  185-,  A.  B., 

of  said  county,  appeared  before  me,  L.  M.,  a  justice  of  the  peace,  and 
took  and  subscribed  an  affidavit  in  the  words  following,  to  wit :  (set 
out  affidavit  at  length.) 

That  I  did  thereupon  appoint  E.  F.,  G.  H.,  and  I.  J.,  three  respecta- 
ble householders  of  the  neighborhood,  forthwith  to  appraise  the  said  flat 
boat,  ("  and  cargo,"  if  any,)  who  being  by  me  first  duly  sworn  to  ex- 
amine and  appraise  the  same  without  partiality,  favor  or  affection,  and 
make  a  true  report  thereof,  made  their  report  to  me  in  the  words  follow- 
ing, viz  :  (Here  set  out  the  report  at  length.) 

In  witness  whereof,  the  said  justice  has  hereunto  set  his  hand  and 

seal,  this day  of ,  185-. 

L.  M.     [SEAL.] 

STATE  OF  ILLINOIS,  > 

COUNTY,      j 

I,  L.  M.,  justice  of  the  peace  in  and  for  the  said  county,  do  hereby  cer- 
tify that  the  above  is  a  true  copy  of  the  proceedings  in  relation  to  the 
flat  boat,  &c.,  therein  described,  as  entered  by  me  on  my  estray  book. 

Dated  the day  of ,  185-. 

L.  M.,  /.  P.     [SEAL.] 

Advertisement  by  the  taker  up,  where  appraisement  of  the  craft,  in- 
cluding the  cargo,  does  not  exceed  twenty  dollars. 

NOTICE. 

Taken  up  by  the  subscriber,  on  the day  of ,  185-, 

(describe  accurately  the  craft,  and  cargo,  if  any,)  found  adrift,   (state 

ichen  found,)  in  — : county,  which  I  have  caused  to  be  appraised 

according  to  law. 

Dated  the day  of ,  185-. 

A.  B.     [SEAL.] 


CHAP.  7.]  ESTRAYS.  333 

How  to  proceed  in  Counties  adopting  Township  Organization. 

By  an  act  to  amend  chapter  thirty-nine  of  the  revised  Statutes,  enti- 
tled "Estrays,"  approved  February  15,  1855,  it  is  enacted : 

"Sec.  1.  That  in  counties  which  have  adopted  or  shall  hereafter 
adopt  township  organization,  the  town  clerks  of  every  town  thereof  shall 
provide  a  book  for  the  purpose  of  registering  the  mark,  brand  and  color 
of  any  animals  enumerated  in  chapter  thirty-nine  of  the  revised  statutes, 
taken  up  as  an  estray,  which  book  shall  be  open  at  all  times  for  inspec- 
tion by  all  persons  interested  therein,  and  shall  be  deemed  a  part  of  the 
records  of  said  town. 

"  Sec.  2.  Any  person  who  shall  take  up  any  estray  according  to  the 
provisions  of  the  act  to  which  this  is  an  amendment,  shall  cause  to  be 
registered  in  the  book  provided  in  the  foregoing  section,  the  marks, 
brands  and  color  of  said  estray  within  five  days  from  the  time  of  such 
taking  up." 


334  FORCIBLE    ENTRY   AND    DETAINER.  [PART  3, 


CHAPTER   VIII. 

OF  FORCIBLE  ENTRY  AND  DETAINER. 

Rev.  Stat.  256,  Sec.  1.  "If  any  person  shall  make  any  entry  into 
any  lands,  tenements  or  other  possessions,  except  in  cases  where  entry 
is  given  by  law,  or  shall  make  any  such  entry  by  force,  or  if  any  per- 
son shall  willfully  and  without  force,  hold  over  any  lands,  tenements,  or 
other  possessions,  after  the  determination  of  the  time  for  which  such 
lands,  tenements,  or  possessions  were  let  to  him,  or  to  the  person 
under  whom  he  claims,  after  a  demand  made  in  writing  for  posses- 
sion thereof,  by  the  person  entitled  to  such  possession,  such  person 
shall  be  adjudged  guilty  of  a  forcible  entry  and  detainer,  or  a  forcible 
detainer,  as  the  case  may  be,  within  the  intent  and  meaning  of  this 
chapter. 

"  Sec.  2.  Any  justice  of  the  peace  of  any  county  in  this  State, 
shall  have  jurisdiction  of  any  case  arising  under  this  chapter,  and 
on  complaint  upon  oath  of  the  party  aggrieved,  or  his  authorized 
agent,  shall  issue  his  summons  directed  to  the  sheriff  (or  coroner,  if 
the  sheriff  be  interested,)  of  his  county,  commanding  him  to  summon 
the  person  against  whom  the  complaint  is  made,  to  appear  before 
such  justice  at  a  time  and  place  to  be  stated  in  such  summons,  not 
more  than  twelve  nor  less  than  six  days  from  the  time  of  issuing 
such  summons,  and  which  shall  be  served  at  least  five  days  before 
the  return  day  thereof,  by  reading  the  same  to  the  defendant,  or 
leaving  a  copy  at  his  place  of  abode  ;  and  the  said  justice  shall 
also,  at  the  same  time,  issue  a  precept  to  the  sheriff  or  coroner,  com- 
manding him  to  summon  a  jury  of  twelve  good  and  lawful  men  of 
the  county,  to  appear  before  him  at  the  return  of  such  summons, 
to  hear  and  try  the  said  complaint.  And  if  any  part  of  the  jurors  shall 
fail  to  attend  or  be  challenged,  the  said  justice  may  order  the  sheriff 
or  coroner  to  complete  the  number,  by  summoning  and  returning 
others  forthwith. 


ClIAP.   8.]  FORCIBLE   ENTRY   AND    DETAINER.  335 

"  Sec.  3.  The  sheriff  or  coroner  shall  return  to  the  said  justice, 
the  summons  and  precept  as  aforesaid,  on  the  day  assigned  for  trial, 
and  shall  state  on  the  back  of  said  summons,  how  the  same  was 
served,  and  on  the  back  of  said  precept,  a  list  of  the  names  of  the 
jurors.  And  if  the  defendant  does  not  appear,  the  justice  shall 
proceed  to  try  the  said  cause,  ex  parte,  or  may,  in  his  discretion,  post- 
pone the  trial  for  a  time  not  exceeding  ten  days ;  and  the  said  justice 
shall  also  issue  subpoenas  for  witnesses,  and  proceed  in  the  trial  of  said 
cause,  as  in  other  cases  of  trial  by  jury. 

"  Sec.  4.  No  indictment  or  inquisition  shall  be  necessary  in  any 
case  arising  under  this  chapter ;  but  the  justice  shall  set  down  in 
writing,  the  complaint  under  oath,  particularly  describing  the  lands, 
tenements,  or  possessions  in  question,  and  shall  keep  a  record  of  the 
proceedings  had  before  him ;  and  if  the  jury  shall  find  the  defendant 
guilty,  he  shall  give  judgment  thereon,  for  the  plaintiff  to  have  restitu- 
tion of  the  premises  and  his  costs,  and  shall  award  his  writ  of  restitu- 
tion ;  and  if  a  verdict  be  given  for  the  defendant,  judgment  shall  be 
given  against  the  plaintiff  for  costs,  and  execution  issued  therefor. 

"  Sec.  5.  If  either  party  shall  feel  aggrieved  by  the  verdict  of 
the  jury  or  the  decision  of  the  justice  on  any  trial  had  under  this 
chapter,  he  or  she  may  have  an  appeal  to  the  circuit  court,  to  be 
obtained  in  the  same  manner,  and  tried  in  the  same  way  as  appeals 
from  justices  of  the  peace  in  other  cases. 

"  Sec.  6.  If  the  defendant  or  defendants  appeal,  he  or  they  shall 
also  insert  in  the  appeal  bond,  a  clause  conditioned  for  the  payment 
of  all  rents  becoming  due,  if  any,  from  the  commencement  of  the 
suit,  until  the  final  determination  thereof.  If  the  appeal  be  taken 
within  five  days  after  the  trial  had  before  the  justice,  no  writ  of 
restitution  or  execution  shall  be  issued  by  him ;  and  the  circuit  court, 
on  giving  judgment  for  the  plaintiff,  shall  award  a  writ  of  restitu- 
tion, and  execution  for  costs,  including  the  costs  before  the  justice; 
and  if  judgment  be  for  the  defendant,  he  shall  recover  costs  in  like 
manner,  and  have  execution  for  the  same." 

Amendment  to  the  foregoing.  By  an  act  to  extend  the  jurisdiction 
of  justices  of  the  peace,  and  constables,  in  action  of  forcible  entry  and 
detainer,  or  forcible  detainer  only,  approved  February  25th,  1845, *  it 
is  enacted : 

"  Sec.  1.  That  in  all  actions  of  forcible  entry  and  detainer,  or 
forcible  detainer  only,  hereafter  to  be  brought  in  this  State,  it  shall  be 

(1)  See  Rev.  Stat.  582. 


336  FORCIBLE  ENTRY  AND  DETAINER.         [PART  3, 

lawful  ifor  constables  in  the  respective  counties  where  such  shall  be 
broughf,  to  serve  all  process  therein,  and  who  shall  be  entitled  to  the 
same  fees  and  emoluments  therefor,  as  sheriffs  are  now  authorized  by 
law  to  receive  for  similar  services. 

"  Sec.  2.  That  when  any  such  action  shall  be  hereafter  brought, 
the  justice  of  the  peace  before  whom  such  suit  shall  be  commenced, 
shall  direct  all  process  to  be  issued  therein  to  the  sheriff  or  any 
constable  of  his  county  to  execute ;  and  when  such  process  shall  be 
issued  and  directed,  it  shall  be  at  the  option  of  the  plaintiff  and 
defendant  to  give  their  respective  process  to  the  sheriff  of  the  county, 
or  to  any  constable  of  the  justice's  district,  to  execute  and  return  the 
same,  any  law  now  in  force  in  this  State  to  the  contrary  notwith- 
standing." 

There  are  four  cases  in  which  a  forcible  entry  and  detainer  may  be 
maintained  in  this  State  :  1.  Where  there  has  been  a  forcible  entry 
upon  the  possession  of  another.  2.  Where  there  has  been  an  illegal — 
as  contradistinguished  from  a  forcible — entry  upon  such  possession. 
3.  Where  a  person  settles  upon  the  unsold  public  lands  within  this 
State,  according  to  the  pre-emption  or  claim  law.  4.  Where  there 
has  been  a  wrongful  holding  over  by  a  tenant,  after  the  expiration  of 
the  time  for  which  the  premises  may  have  been  let  to  him.  In  the 
three  first,  there  must  be  an  illegal  and  forcible  entry  upon  the  actual 
possession  of  another.1  In  order  to  give  a  justice  of  the  peace  juris- 
diction in  this  action,  the  complaint  should  contain  sufficient  allegations 
to  bring  it  within  one  of  the  several  cases  contemplated  by  the  statute,2 
and  in  order  to  maintain  the  action,  two  things  must  concur,  First,  The 
possession  must  be  illegally  or  forcibly  taken,  which  constitutes  the 
entry ;  and  Second,  The  possession  so  taken  must  be  withheld,  which 
constitutes  the  detainer.3  It  is  not  necessary  to  prove  actual  force  and 
physical  violence.4 

A  complaint  for  forcible  entry  and  detain  r,  should  show  clearly  the 
foundation  of  the  right  which  is  sought  to  be  enforced,  and  that  the 
wrongful  or  illegal  entry  was  made  upon  the  actual  or  constructive 
possession,  of  the  plaintiff,  or  the  existence  of  landlord  and  tenant,  and 
a  wrongful  holding  over.5 

There  is  no  precise  form  for  a  complaint  in  an  action  of  forcible 
entry  and  detainer.  It  is  sufficient,  if  the  complaint  show  that  the 
relation  of  landlord  and  tenant  existed,  that  the  time  for  which  the 

(1)  1  Scam.  409.  (2)  3  Gil.  449.  (3)  5  Id.  219. 

(4)  1  Scam.  409.  (5)  3  Gil.  443. 


ClIAP.   8.]  FORCIBLE   ENTRY   AND   DETAINER.  337 

premises  let  has  expired,  and  that  the  tenant  persisted  in  holding  the 
premises  after  demand  made  in  writing  for  the  possession.1 

The  description  of  the  premises  sought  to  be  regained,  should  be  exact 
and  particular.2  Where  a  complaint  only  stated  that  "  the  complainant 
was  entitled  to  the  possession  of  a  house  and  lot  in  the  town  of  Galena, 
wherein  one  Wells  lives,  and  that  said  Wells  refuses  to  give  possession 
of  said  house,  although  he  was  notified  so  to  do  in  writing,"  it  was 
held  insufficient.8 

The  action  of  forcible  entry  and  detainer  is  purely  a  civil  remedy, 
the  sole  object  of  which  is  to  regain  a  possession  which  has  been 
invaded,  and  the  only  judgment  that  can  be  rendered  is,  that  the 
plaintiff  have  restitution  of  the  premises.4 

The  jurisdiction  of  this  action  is,  in  the  first  place  vested  exclusively 
in  justices  of  the  peace;  county  and  circuit  courts  obtain  jurisdiction 
only  by  appeal.5 

Where  a  tenant  claims  adversely  to  his  landlord,  his  possession  from 
that  moment  becomes  tortious,  and  the  landlord  may  regain  it  by  an 
action  of  forcible  entry  and  detainer,  whether  it  is  occupied  by  the 
tenant,  his  agents  or  assigns.6 

In  a  case  of  forcible  detainer  by  the  landlord,  against  the  tenant,  the 
latter  is  not  permitted  to  show  that  the  title  of  the  former  has  expired, 
or  that  some  third  person  has  the  right  to  the  possession.  The  tenant 
must  first  surrender  the  possession  to  him  from  whom  he  received  it, 
before  he  shall  be  permitted  to  say  that  his  landlord  has  no  longer  a 
right  to  retain  it.7 

Where  a  lease  provides  that  the  party  may  re-enter  and  take  posses- 
sion, on  non-payment  of  rent,  it  will  be  sufficient  to  aver  a  demand  in 
general  terms,  and  that  the  lease  provides  for  re-entry,  &c. ;  the  utmost 
technical  strictness  is  not  necessary  in  a  declaration  before  a  justice  of 
the  peace ;  if  it  is  substantially  correct,  it  will  be  good.8 

In  an  action  of  forcible  detainer  only,  the  plaintiff  should  state  that 
the  defendant  willfully,  and  without  force,  holds  over  the  premises  after 
the  time  has  expired  for  which  they  are  leased ;  or,  in  other  words,  the 
relation  of  landlord  and  tenant  should  be  shown  to  exist,  and  a  holding- 
over  after  a  demand  made  in  writing  by  the  landlord.9 

A  verdict  of  a  jury  which  simply  finds  the  defendant  guilty,  will  be 

(1)  5  Gil.  293  ;  11  111.  93.  (2)  11  111.  93  ;  1  Scam.  407.  (3)  Brcese,  264. 

(4)  5  Gil.  219.  (5)  4  Id.  131.  (6)  14  111.  135 ;  5  Gil.  62. 

(7)  5  Gil.  41.  (8)  3  Id.  291.  (9)  Breese,  264. 

21 


338  FORCIBLE   ENTRY   AND    DETAINER.  [PART  3, 

sufficient.1     The  judgment  in  this  action  will  be  that  the  plaintiff  have 
restitution  of  the  premises  of  which  he  has  been  unjustly  deprived.2 

The  proceedings  in  this  action,  under  our  statute,  being  contrary  to 
the  common  law,  the  statute  must  be  strictly  followed.8 

Form  of  Complaint  for  an  Entry  without  force. 

STATE  OF  ILLINOIS,  > 
Cook  COUNTY,     ) 

The  complaint  of  A.  B.,  of ,  in  said  county,  who,  being  duly 

sworn,  upon  his  oath  gives  L.  M.,  one  of  the  justices  of  the  peace  of 

said  county,  to  understand  and  be  informed  that  C.  D.,  on  the 

day  of ,  18 — ,  at ,  in  the  county  aforesaid,  did  unlaw- 
fully enter  into  the  lands  (or  "  tenements  ")  and  possessions  of  the 
complainant,  there  situate,  known  and  designated  as  follows,  to  wit : 
(describe  the  land,)  and  then  and  there  did  unlawfully  put  out  and  ex- 
pel the  complainant  from  his  said  lands  (or  "  tenements")  and  posses- 
sions, wherein  this  complainant  had,  at  the  time  aforesaid,  an  estate  of 
freehold  then  and  still  subsisting,  (or  ' '  was  possessed  of  a  certain  term 
of  years,  then  and  still  to  come  and  unexpired,"  or  "  been  in  quiet  and 
peaceable  possession  for  the  space  of  eight  years  preceding,  and  that 
his  interest  therein  still  subsists,")  and  the  said  C.  D.  still  doth  hold 
and  detain  the  said  lands  (or  "  tenements")  and  possessions  from  the 
said  complainant,  unlawfully  and  without  right,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided.  Therefore,  he  prays  that 
the  said  C.  D.  may  be  summoned  to  answer  this  complaint. 

Subscribed   and  sworn  before    )  A.  B. 

me,  the day  of ,  18 — 

L.  M.,  J.  P. 

Form  of  a  Complaint  for  forcible  Entry. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      ) 

The  complaint  of  A.  B.,  of ,  in  the  said  county,  who,  being 

duly  sworn,  upon  his  oath  gives  L.  M.,  one  of  the  justices  of  the  peace 

in  said  county,  to  understand  and  be  informed  that  C.  D.  on  the 

clay  of ,  18 — ,  at ,  in  said  county,  did  unlawfully  make  a 

forcible  entry  into  the  lands  (or  "  tenements  ")  and  possessions  of  this 

(1)  5  Gil.  293.  (2)  Id.  219;  2  Scam.  66.  (3)  Breese,  264. 


ClIAP.  8.  ]  FORCIBLE    ENTRY   AND    DETAINEE.  339 

complainant,  there  situate,  and  known  and  designated  as  follows,  to 
wit:  (insert  the  description,}  and  then  and  there  with  strong  hand 
and  multitude  of  people,  did  violently,  forcibly  and  unlawfully  eject 
and  expel  the  complainant  from  the  said  lands  (or  "  tenements  ")  and 
possessions  wherein  this  complainant  had,  at  the  time  aforesaid,  an  estate 
of  freehold,  then  and  still  subsisting,  (or  "  was  possessed  of  a  certain 
tenn  of  years,  then  and  still  to  come  unexpired,"  or  "  been  in  quiet  and 
peaceable  possession  for  the  space  of  six  months,  then  next  preceding,") 
and  that  the  said  C.  D.  still  doth  hold  and  detain  the  said  lands  (or 
"  tenements,")  and  possessions  from  the  said  A.  B.,  unlawfully,  forci- 
bly, and  with  strong  hand,  against  the  form  of  the  statute  in  such  case 
made  and  provided.  Therefore,  he  prays  that  the  said  C.  D.  may  be 
summoned  to  answer  to  the  said  complaint. 

Sworn  and  subscribed  before  ^  A.  B. 

me,  the day  of ,  18 — . 

L.  M.,  /.  P. 

Form  of  Demand  of  Possession. 

To  Mr.  C.  J).  : 

Sir :  Take  notice  that  I  hereby  demand  that  you  quit  and  imme- 
diately deliver  up  possession  of  the  lands  (or  "  tenements  ")  and  pos- 
sessions which  you  now  hold  of  me,  situate  in ,  in  the  county  of 

,  being  the  same  now  occupied  by  you.     Mr.  E.  F.  is  hereby 

authorized  to  receive  possession  of  said  land  for  me. 

Dated  the day  of ,  18—. 

Yours,  &c.,  A.  B. 

Form  of  Notice,  when  given  by  an  agent. 

To  Mr.  C.  D.  : 

Sir :  Take  notice  that  I  do,  as  the  agent  for  and  on  behalf  of  your 
landlord,  A.  B.,  of ,  demand  that  you  quit  and  immediately  de- 
liver up  possession  of  the  lands  (or  "tenements")  and  possessions 

which  you  now  hold  of  the  said  A.  B.,  situate  in ,  in county, 

being  the  same  on  which  you  now  reside. 

Dated  the  -   -  day  of ,  18—. 

Yours,  &c.,  G.  H., 

Agent  for  the  said  A.  B. 


340  FORCIBLE  ENTRY  AND  DETAINER.          [PART  3, 

Eorm  of  Complaint  for  a  forcible  Detainer. 

STATE  OF  ILLINOIS,  ) 
COUNTY,      )  S5 

The  complaint  of  A.  B.  of ,  in  said  county,  who  being  duly 

sworn,  upon  his  oath  gives  L.  M.,  Esquire,  a  justice  of  the  peace  of  said 

county,  to  understand  and  be  informed  that  on  or  about  the day  of 

,  18 5-,  he  did  demise  and  lease  to  C.  D.  of  the  place  aforesaid, 

all  that  certain  farm  {or  "  messuage,")  situate  in ,  in  the  county 

aforesaid,  known  and  designated  as  follows  :  (describe  the  premises,}  for 

and  during  the  term  of  one  year  from  the  said  day  of , 

185-,  and  that  the  said  C.  D.  willfully  and  without  force,  after  the 
expiration  of  the  said  lease,  held  over  and  still  continues  in  possession 
of  the  premises  without  the  permission  of  this  complainant,  notwith- 
standing demand  has  been  made  in  writing  by  this  complainant  upon 
the  said  C.  D.,  to  quit  and  deliver  up  possession  thereof  to  him  ;  there- 
fore he  prays  that  the  said  C.  D.  may  be  summoned  to  answer  to  the 
said  complaint. 

Subscribed  and  sworn  before  me,  the ")  A.  B. 

—  day  of ,  185-. 

L.  M.,  J.  P. 

Form  of  Summons. 

STATE  OF  ILLINOIS,  ") 
COUNTY,       }  ss> 


'The  People  of  the  State  of  Illinois  to  the  Sheriff  or  any  Constable  of 
the  said  County : 

Whereas  complaint  has  been  made  before  L.  M.,  Esquire,  one  of  the 

justices  of  the  peace  of  said  county,  that  C.  D.  on  the day  of 

,  185-,  at ,  in  the  county  aforesaid,    did  unlawfully 

enter  into  the  lands  and  possessions  of  A.  B.  there  situate,  and  known 
and  designated  as  follows,  to  wit :  (describe  the  premises,}  and  then 
and  there  did  unlawfully  put  out  and  expel  the  said  A.  B.  from  his 
said  lands  and  possessions,  wherein  he  had  been  in  the  quiet  and  peace- 
able possession  for  the  space  of  eight  years  preceding,  and  that  his  inter- 
est therein  still  continues,  and  that  the  said  C.  D.  still  doth  hold  and 
detain  the  said  lands  and  possessions  from  the  said  A.  B.,  unlawfully  and 
without  right,  (or  if  for  any  other  cause,  set  it  forth  in  the  complaint] : 


CUAP.  8.]  FORCIBLE   ENTRY   AND    DETAINER.  341 

We,  therefore,  command  you  to  summon  the  said  C.  D.  to  appear 

before  the  said  justice  at  his  office  in ,  in  said  county,  on  the 

day  of ,  instant,  at o'clock,  in  the noon,  to 

answer  the  said  complaint ;  and  have  you  then  and  there  this  precept. 
Hereof  fail  not  at  your  peril. 

Given  under  the  hand  and  seal  of  said  justice,  the day  of 

1  185-. 

L.  M.,  /.  P.     [SEAL.] 


Form  of  a  Subpoena. 


STATE  OF  ILLINOIS, 
COUNTY, 


The  People  of  the  State  of  Illinois  to  L  J.,  K.  L.,  M.  N.  and  0.  P.  : 

You,  and  each  of  you,  are  hereby  required  to  be  and  appear  before 
L.  M.,  Esquire,  one  of  the  justices  of  the  peace  of  the  said  county  at 

his  office  in ,  in  said  county,  on  the day  of ,  instant, 

at o'clock,  in  the noon,  to  testify  the  truth,  according  to 

your  knowledge,  touching  a  certain  complaint  made  and  exhibited  by 
A.  B.  before  the  said  justice,  against  C.  D.,  for  a  forcible  entry  and 
detainer  (or  "detainer,")  and  for  which  the  said  C.  D.  is  then  and 
there  to  be  tried  on  the  part  of  the  complainant,  (or  "  on  the  part  of  the 
defendant,") 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,  185-. 

L.  M.,  J.  P.     [SEAL.] 

There  may  be  four  witnesses  put  in  one  subpoena. 

Form  of  Precept  for  summoning  a  Jury. 

STATE  OF  ILLINOIS, 
COUNTY, 

The  People  of  the  State  of  Illinois  to  the  Sheriff"  or  or  any  Constable 
of  the  said  Connty  : 

We  command  you  to  summon  twelve  good  and  lawful  men  of  your 
county,  who  are  in  no  wise  of  kin  to  A.  B.  or  C.  D.,  to  appear  before 
L.  M.,  Esquire,  one  of  the  justices  of  the  peace  in  said  county,  at  his 

office  in ,  in  the  said  county,  on  the day  of instant, 

at o'clock  hi  the noon,  to  make  a  jury,  upon  their  oaths  to 

hear  and  try  the  traverse  of  the  complaint  of  the  said  A.  B.,  and  now 


342  FORCIBLE  ENTRY  AND  DETAINER.  [PART  3, 

pending  before  the  said  justice  against  the  said  C.  D.,  for  a  forcible 
entry  and  detainer  (or  "  detainer,")  against  the  form  of  the  statute,  in 
such  case  made  and  provided ;  and  that  you  make  a  list  of  the  persons 
summoned,  and  certify  the  same  on  the  back  of  this  precept,  and  make 
return  hereof  to  the  said  justice. 

Given  under  the  hand  and  seal  of  the  said  justice,  the  day  of 

,  185-. 

L.  M.,  J.  P.     [SEAL.] 

Jurors'  Oath  upon  the  Traverse. 

You,  and  each  of  you,  do  swear  that  you  will  well  and  truly  hear, 
try  and  determine  this  issue  of  traverse  between  A.  B.,  the  complain- 
ant, and  C.  D.,  the  defendant,  and  a  true  verdict  give  according  to  the 
evidence.  So  help  you  God. 

Form  of  Oath  of  Witness. 

You  do  swear,  (or  "you  do  solemnly,  sincerely  and  truly  declare  and 
affirm,")  that  the  evidence  which  you  shall  give  upon  the  issue  of 
traverse,  between  A.  B.,  the  complainant,  and  C.  D.,  the  defendant, 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  So  help 
you  God. 

The  verdict  of  the  jury  should  be,  "  We  find  the  defendant  guilty  in 
manner  and  form  as  stated  in  complaint,"  or  "  We  find  the  defendant 
not  guilty." 

Form  of  Record  of  Proceedings. 

A.  B.      ) 

vs.         v   COUNTY,  ss. 

C.  D.      ) 

Be  it  remembered  that  on  the day  of ,  18 — ,  at ,  in 

said  county,  A.  B.  complains  to  me,  L.  M.  Esquire,  one  of  the  justices 
of  the  peace  in  and  for  the  said  county,  (what  follows  in  brackets  must 

correspond  with  the  charge  in  the  complaint,}  [that  C.  D.  on  the 

day  of ,  18 — ,  at ,  in  the  county  of ,  did  unlawfully  enter 

into  the  lands  and  possessions  of  the  said  A.  B.,  there  situate,  and 
known  and  designated  as  follows,  to  wit :  (insert  the  description}  ; 
and  then  and  there  did  unlawfully  put  out  and  expel  the  complainant 
from  his  said  lands  and  possessions  wherein  the  said  A.  B.  had  been  in 


ClIAP.    8.]  FORCIBLE    ENTRY   AND   DETAINER.  843 

the  quiet  and  peaceable  possession  for  the  space  of  eight  years  preceding, 
and  that  his  interest  therein  still  subsists,  and  that  the  said  C.  D.  still 
doth  hold  and  detain  the  said  lands  and  possessions  from  the  said  A.  B. 
unlawfully  and  without  right.] 

Whereupon  the  said  A.  B.,  on  the  • day  of ,  18 — ,  prayed 

of  me,  being  a  justice  as  aforesaid,  to  issue  a  summons  in  this  behalf, 
and  I,  having  heard  the  said  complaint  and  prayer,  did  thereupon  issue 
a  summons,  in  the  name  of  the  people  of  the  State  of  Illinois,  directed 
to  the  Sheriff  of  said  county,  requiring  him  to  summon  the  said  C.  D. 

to  appear  before  me,  at  my  office  in ,  on  the  day  of  , 

18 — ,  at  —  o'clock,  in  the noon,  which  was  duly  returned  with 

an  endorsement  thereon,  signed  by  the  said  sheriff,  as  follows  :  "  Per- 
sonally served,  the  ' day  of ,  18 — ,  by  reading  to  the  within 

named  C.  D.;"  and  on  the  said day  of ,  18 — ,  I  issued  a 

precept  for  a  jury  to  the  said  sheriff,  commanding  him  to  summon  a 
jury  of  twelve  good  and  lawful  men  of  the  county,  to  appear  before  me 
at  the  return  of  the  said  summons,  to  hear  and  try  the  said  complaint, 
which  was  returned  by  the  said  sheriff  with  a  list  of  the  names  of  the 
jurors  on  the  back  thereof,  and  certified  by  him. 

And  on  the  day  of ,  18 — ,  in  pursuance  of  the 

said  summons,  personally  appeared  before  me,  as  well  the  said  C.  D. 
as  the  said  A.  B.,  and  the  said  complaint  having  been  read  to  the  said 
C.  D.,  he  said  that  he  was  not  guilty  of  the  matters  set  forth  therein. 
And  the  jurors,  of  the  jury  summoned  as  aforesaid,  having  been  called, 
tried,  and  sworn,  did  sit  together  before  me,  and  hear  the  proofs  and 
allegations  of  said  parties,  which  were  delivered  publicly  in  their 
presence ;  and  after  hearing  the  said  proofs  and  allegations,  the  jury 
were  kept  together  in  a  convenient  place  by  the  said  sheriff,  until  they 
had  agreed  on  their  verdict.1  And  the  said  jury  having  agreed  on 
their  verdict,  came  into  court,  and  delivered  the  same  publicly,  and 
thereby  found  the  said  C.  D.  guilty,  in  manner  and  form  as  set  forth 
in  the  complaint. 

It  is  therefore  considered  by  me,  the  said  justice,  that  the  said  A.  B. 
recover  and  be  restored  to  the  possession  of  the  lands  and  possessions 
particularly  described  and  designated  in  said  complaint,  and  that  he 

(1)  If  the  verdict  is  for  the  defendant,  then  say,  ''  And  the  said  jury  having  agreed  on  their 
verdict,  came  into  court  and  delivered  the  same  publicly,  and  thereby  found  the  said  C.  D. 
not  guilty.  It  is  therefore  considered  that  the  said  C.  D.  recover  against  the  said  A.  B.,  the 

sum  of dollars  for  his  costs  and  charges  by  him  laid  out  and  expended  in  his  defense 

on  this  behalf,  according  to  the  form  of  the  statute  in  such  case  made  and  provided,  and  that 
he  have  execution  therefor.  In  testimony  whereof,"  &c. 


344  FORCIBLE    ENTRY   AND    DETAINER.  [PART  3, 

have  a  writ  of  restitution  therefor ;  and  it  is  further  considered,  that 

he  recover  against  the  said  C.  D.,  the  sum  of  dollars,  for  his 

costs  and  charges,  by  him  laid  out  and  expended  in  and  about  the 
prosecution  of  this  suit,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  that  he  have  execution  therefor. 

In  testimony  whereof,  I,  the  said  L.  M.,  one  of  the  justices  of  the 

peace,  as  aforesaid,  have  hereunto  set  my  hand  and  seal  at ,  in 

the  county  of ,  the day  of ,  18 — . 

L.  M.,  J.  P.     [SEAL.] 


Form  of  Writ  of  Restitution. 


STATE  OF  ILLINOIS, 
COUNTY, 


>  ss. 


The  People  of  the  State  of  Illinois  to  the  Sheriff"  of  the  said  County: 
Whereas  A.  B.,  lately  exhibited  his  complaint  under  oath,  in  writing, 
before  L.  M.,  Esquire,  one  of  the  justices  of  the  peace  of  said  county, 
that  (set  out  the  charge  as  in  the  complaint,^)  and  prayed  that  the  said 
justice  issue  a  summons  in  that  behalf;  whereupon  the  said  justice 
issued  a  summons,  directed  to  the  sheriff,  requiring  him  to  summon 

the  said  C.  D.  to  appear  before  the  said  justice  on  the  day  of 

,  18 — ,  and  at  the  same  time  issued  a  precept  to  the   sheriff, 

commanding  him  to  summon  a  jury  to  appear  before  him  at  the  same 
time  and  place,  on  which  day  the  said  C.  D.  appeared  before  the  said 
justice,  and  traversed  the  said  complaint,  and  the  jury  being  sworn, 
after  hearing  the  proofs  and  allegations  of  the  parties,  found  the  said 
C.  D.  guilty;  whereupon  it  was  considered  by  the  said  justice,  that 
the  said  A.  B.  be  restored  to  the  possession  of  the  said  lands  and 
possessions,  and  have  a  writ  of  restitution  therefor ;  and  it  was  further 
considered  by  the  said  justice  that  the  said  A.  B.  recover  against  the 

said  C.  D.  the  sum  of dollars  for  his  costs  and  charges  by  him 

laid  out  and  expended,  in  and  about  the  prosecution  of  said  suit,  as 
appears  to  us  by  the  record  of  the  said  justice  : 

We,  therefore,  command  you  to  go  to  the  said  premises  without  de- 
lay, taking  with  you  the  power  of  the  county,  if  necessary,  and  to  cause 
the  said  A.  B.  to  be  restored  and  put  in  full  possession  of  the  said 
lands  (or  "tenements,")  and  possessions,  according  to  his  estate  and 
right  therein  before  the  said  entry,  (or  "  detainer,")  in  pursuance  of 
the  statute  in  such  case  made  and  provided. 

And  we  also  command  you  to  levy  of  the  goods  and  chattels  of  the 


CHAP.  8.]        FORCIBLE  ENTRY  AND  DETAINER.  345 

said  C.  D.  in  your  county,  the  said  sum  of dollars,  which  was 

adjudged  to  the  said  A.  B.  for  his  costs  and  charges  aforesaid,  whereof 
the  said  C.  D.  is  convicted,  as  appears  to  us  by  the  said  record,  and 
that  you  make  return  of  what  you  shall  do  hereon,  with  all  convenient 
speed. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of ,  185-. 

L.  M.,  /.  P.     [SEAL.] 

Form  of  Execution  for  Costs  against  the  Complainant. 


STATE  OF  ILLINOIS, 
COUNTY, 


>•  ss. 


The  People  of  the  State  of  Illinois  to  the  Sheriff  of  the  said  County : 

Whereas,  A.  B.  lately  exhibited  his  complaint  under  oath  in  writing 

before  L.  M.,  Esquire,  one  of  the  justices  of  the  peace  of  the  said  county, 

against  C.  D.  for  a  forcible  entry  and  detainer,  whereupon  the  said  C. 

D.  was  summoned,  and  appeared  before  the  said  justice  on  the 

day  of ,  185-,  and  traversed  the  said  complaint,  and  the  jury 

for  that  purpose  duly  summoned  and  sworn,  after  hearing  the  proofs 
and  allegations  of  the  parties,  by  their  verdict  found  the  said  C.  D.  not 
guilty ;  whereupon  it  was  considered  by  the  said  justice  that  the  said 

C.  D.  recover  against  the  said  A.  B.  the  sum  of dollars  for  his 

costs  and  charges  by  him  laid  out  and  expended  in  and  about  his  de- 
fense in  this  behalf,  as  appears  to  us  by  the  record  of  the  said  justice : 
We  therefore  command  you  that  of  the  goods  and  chattels  of  the  said 

A.  B.  in  your  county,  you  levy  the  sum  of dollars  for  his  costs 

and  charges  by  the  said  C.  D.  laid  out  and  expended  as  aforesaid.  And 
do  you  make  return  of  what  you  shall  do  hereon  with  all  convenient 
speed. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day  of 

,  185-. 

L.  M.,  J.  P.     [SEAL.] 


346  INCLOSURES  AND  FENCES.  PART  3. 


CHAPTER   IX. 

OF  INCLOSURES  AND  FENCES. 

Rev.  Stat.  280,  Sec.  11.  "  For  the  better  ascertaining  and  regula- 
ting of  partition  fences,  it  is  hereby  directed  that  when  any  neighbors 
shall  improve  lands  adjacent  to  each  other,  or  when  any  person  shall 
inclose  any  land  adjoining  to  another's  land  already  fenced,  so  that  any 
part  of  the  first  person's  fence  becomes  the  partition  fence  between 
them,  in  both  these  cases  the  charge  of  such  division  fence,  (so  far  as 
inclosed  on  both  sides,)  shall  be  equally  borne  and  maintained  by  both 
parties ;  to  which,  and  other  ends  in  this  chapter  mentioned,  the  county 
commissioners,  yearly,  and  every  year  in  the  term  next  after  the  month 
of  January,  shall  nominate,  and  are  hereby  required  to  nominate  and 
appoint  three  honest,  able  men  for  each  township,  who  being  duly  sworn 
to  the  faithful  discharge  of  the  duties  of  their  appointment,  shall  proceed 
at  the  request  of  any  person  or  persons  feeling  him  or  themselves 
aggrieved,  to  view  all  such  fence  and  fences,  about  which  any  differ- 
ence may  happen  or  arise ;  and  the  aforesaid  persons,  or  any  two  of 
them,  in  each  township  respectively,  shall  be  the  sole  judges  of  the 
charge  to  be  borne  by  the  delinquent,  or  by  both  or  either  party,  and 
of  the  sufficiency  of  all  fences,  whether  partition  fences  or  others." 

By  the  Act  to  provide  for  township  organization,  approved  February 
17th,  1851,  Article  3,  Sec.  3,  the  assessor  and  the  three  commissioners 
of  highways  ~of  each  town,  in  counties  adopting  township  organization, 
are  made  fence  viewers  by  virtue  of  their  office.1 

It  would  seem  that  before  a  party  can  be  made  liable  for  making  or 
repairing  a  partition  fence,  the  proportion  which  he  is  bound  to  make 

(1)  The  forms  here  given,  have  been  prepared  with  reference  to  township  organization,  (See 
Haines'  Town.  Organ.,  page  88.)  and  when  used  in  counties  not  adopting  this  system,  the  only 
change  necessary  will  be  to  insert  the  number  of  the  township,  according  to  the  customary 
description,  instead  of  the  name  of  the  town. 


CHAP.  9.]  INCLOSURES  AND  FENCES.  347 

or  repair,  ought  to  be  either  agreed  upon  or  else  assigned  according  to 
law,  for  until  this  is  done,  the  obligation  is  undefined,  unless  it  may 
have  been  otherwise  determined  by  prescription ; x  and  where  there 
exists  in  such  case,  a  joint  obligation  to  make  the  fence,  it  is  held  that 
no  legal  effect  would  flow  from  it ;  for  then  each  party  would  be  bound 
equally  to  make  every  part ;  and  if  the  fence  be  defective,  each  party 
would  be  chargeable  with  the  deficiency ;  and  upon  the  escape  of  cattle 
from  either  close  to  the  other,  through  a  defect  in  any  part  of  the  fence, 
the  owner  of  the  cattle  could  not  allege  the  escape  to  be  from  the  defi- 
ciency of  the  other's  fence.  2 


Agreement  to  divide  Partition  Fence. 

On  this day  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred,  &c.,  it  is  agreed  by  and  between  A.  B.  of  the  county 

of ,  and  State  of  Illinois,  of  the  one  part,  and  C.  D.  of  said 

county,  of  the  other  part,  as  follows,  viz. : 

Whereas,  the  said  A.  B.  has  heretofore  erected  a  fence  on  the  divi- 
sion line,  between  his  lands  and  the  lands  of  the  said  C.  D.,  which 
said  fence  commences  at  the  (Jiere  describe  location  of  fence,)  and 
whereas,  after  the  erection  of  said  fence,  the  said  C.  D.  inclosed  a  field 
on  the  cast  side  of  said  division  line,  so  that  sixty  rods  of  said  fence, 
commencing  at  the  (here  describe  the  location  of  said  portion  of 
fence,)  has  become,  and  now  is  a  partition  fence  between  the  fields  of 
the  said  A.  B.  and  C.  D.,  and  whereas,  the  said  C.  D.  has  paid  to  the 
said  A.  B.  one  half  of  the  expense  of  building  said  sixty  rods  of  fence,  it 
is  therefore,  now  agreed  between  the  parties  hereto,  that  the  thirty  rods 
on  the  north  part  of  the  said  sixty  rods,  shall  be  well  and  sufficiently 
maintained  and  kept  in  repair  by  the  said  A.  B.,  and  the  remainder  of 
the  said  sixty  rods  shall  be  kept  in  like  repair  by  the  said  C.  D. 

In  witness  whereof,  we  have  hereto  set  our  hands  and  seals,  the  day 
and  year  aforesaid. 

Executed  and  delivered  in  the    I  A.  B.     TSEAL.! 

presence  of 

C.  D.     [SEAL.] 


(1)6  Mass.  100.  (2)  6  Mass.  101 ;  19  Johns.  385. 


348  INCLOSCRES   AND   FENCES.  [P.A.ET  3, 

Form  of  Certificate  of  Fence  Viewers  of  Value  of  Fence  in  case  of 
an  adjoining  Owner. 


TOWN  OF 


COUNTY.      ) 

>  ss. 


Whereas,  A.  B.  and  C.  D.  were  and  are,  as  appears  to  us,  the 

owners  of  certain  adjoining  lands  in  said  town  of .  The  lands 

of  the  said  A.  B.  being  described  as  (describe  the  premises  in  question 
with  reasonable  certainty,}  and  the  land  of  the  said  C.  D.  being 
described  as  (describe  the  land,)  and  the  said  A.  B.  formerly  permitted 
his  land  so  adjoining  that  of  the  said  C.  D.,  to  lie  open  and  unenclosed, 
while  the  land  of  the  said  C.  D.,  has  been  and  is  now  enclosed  by  a 
fence  ;  and  whereas,  the  said  A.  B.  has  lately  enclosed  his  said  land, 
so  that  now  the  fence  of  the  said  C.  D.,  has  become  a  division  fence 
between  said  lands ;  and  whereas  a  dispute  or  disagreement  has  arisen 
between  the  said  parties  concerning  the  proper  portion  of  the  value  of 
said  division  fence  to  be  paid  by  the  said  A.  B.  Now  therefore,  we, 

the  undersigned  fence  viewers  of  said  town  of ,  do  hereby 

certify  that  we  have  made  inquiry  into  the  facts,  and  examined  the 
premises ;  that  the  following  is  a  correct  description  of  the  fence  built 
by  the  said  C.  D.  as  aforesaid,  to  wit :  Commencing  at  the  north- 
west corner  of  section  eight  in  said  town,  and  running  thence  south  on 
the  west  line  of  said  section,  one  hundred  and  sixty  rods  to  the  south- 
west corner  of  said  quarter  section  ;  and  that  we  have  estimated  the 

value  of  said  fence  to  be dollars,  and  that  the  proportion  of  said 

fence  to  be  paid  by  said  A.  B.  to  the  Said  C.  D.,  is dollars. 

Given  under  our  hands  this day  of ,  A.  D.  18 — . 

E.  F.,    1 

Fence    Viewers 
Or.   H.,     i  ,,.  ,, 

Y          of  the 
1.  J., 


K.  L 


Town  of 


Form  of  Certificate  of  Fence  Viewers  in  relation  to  Fence  to  be  made 
or  maintained  by  (hvners  of  adjoining  Lands. 

COUNTY,      ) 


TOWN  OF 


Whereas,  A.  B.  and  C.  D.,  are,  as  appears  to  us,  the  owners  of  cer- 
tain lands  adjoining,  in  the  said  town  of ,  (liere  describe  the  lands 


CHAP.  9.]  INCLOSURES  AND  FENCES.  349 

as  in  the  foregoing  form,  with  reasonable  certainty,}  and  as  dispute 
or  disagreement  has  arisen  between  them  concerning  the  respective 
portions  of  a  division  fence  to  be  maintained  (or  "  to  be  made,"  as  the 
case  may  be,}  by  them.  Now  therefore,  we  the  undersigned  fence 
viewers  of  the  said  town  of ,  do  hereby  certify  that  upon  the  appli- 
cation of  the  said  parties,  we  did,  on  the day  of ,  A.  D. 

18 — ,  proceed  to  examine  the  premises,  and  hear  the  allegations  of  the 
parties,  and  that  we  do  determine  that  (here  state  the  determination  of 
the  viewers  according  to  the  fact.} 

Given  under  our  hands  this day  of ,  A.  D.  18 — . 

E.  F.,     "I 

G    H       I  ^ence    Viewers 

i.  j.,'    r      °fthe 

K.  L.,     I  Town  °f~ 

"  Sec.  12.  When  they  shall  judge  any  fence  to  be  insufficient,  they 
shall  give  notice  thereof  to  the  owners  or  possessors ;  and  if  any  one 
of  the  owoers  or  possessors,  upon  request  of  the  others,  and  due  notice 
given  by  the  said  viewers,  shall  refuse  or  neglect  to  make  or  repair 
the  said  fence  or  fences,  or  to  pay  the  moiety  of  the  charges  of  any 
fence  before  made,  being  the  division  or  common  fence,  within  twenty 
days  after  notice  given,  then,  upon  proof  thereof  before  two  justices  of 
the  peace  of  the  respective  county,  it  shall  be  lawful  for  the  said  justices 
to  order  the  person  aggrieved,  and  suffering  thereby,  to  make  or  repair 
the  said  fence  or  fences,  who  shall  be  reimbursed  his  costs  and  charges 
from  the  person  so  refusing  or  neglecting  to  make  or  repair  the  partition 
fence  or  fences  aforesaid,  or  to  order  the  delinquent  to  pay  the  moiety 
of  the  charge  of  the  fence  before  made,  being  a  division  or  common 
fence,  as  the  case  may  be." 

Form  of  Certificate  of  Fence  Viewers  in  adjudging  fence  insufficient 
between  adjoining  lands. 

COUNTY, 


UNTY,          ) 


ss. 


TOWN  OF 

Whereas,  A.  B.  and  C.  D.  are,  as  appears  to  us,  the  owners  of  cer- 
tain lands  adjoining,  in  said  town  of ,  (here  describe  the  lands  of 

each  with  reasonable  certainty,}  and  a  dispute  or  disagreement  has 
arisen  between  them  as  to  the  sufficiency  of  a  division  fence  between 
the  said  lands ;  and  we,  the  undersigned  fence  viewers  of  the  said  town 


350  INCLOSURES  AND  FENCES.  [PART  3. 

of having,  at  the  request  of  the  said  parties,  (or  one  of  them, 

as  the  case  may  be,  naming  him,)  proceeded  to  view  such  fence,  and 
having  viewed  the  same,  and  heard  the  allegations  of  the  respective 
parties,  do  adjudge  and  determine  that  the  portion  of  said  fence,  to  wit : 
(here  describe  it,*)  which  belongs  to  the  said  C.  D.  to  maintain  and 
keep  in  repair,  is  not  a  good  and  sufficient  fence ;  and  that  the  said  C. 
D,  ought,  and  he  is  hereby  requested,  to  repair  the  same,  or  to  make  a 
good  and  sufficient  fence,  within  twenty  days  from  the  time  he  shall  be 
notified  of  this  our  determination  in  the  premises,  and  in  default  thereof, 
that  the  said  A.  B.  will  sufficiently  repair  said  fence,  to  reimburse  his 
costs  and  charges  from  the  said  C.  D. 
Given  under  our  hands  this day  of  • 


E.  F.  1 

J-4.  J-  ..  1 

G.H.,  J 
I  J  | 

Fence  Viewens 
of  the 

J-.  "  •  j  1 

K.  L.,  J 

'/V-v  1/1/11       f\-f 

Form  of  Notice  to  be  given  by  Fence  Viewers,  to  an  adjoining  owner, 
of  their  determination  in  relation  to  insufficiency  of  partition  fence 

To  A.  B.,  of  the  town  of ,  in  the  county  of : 

SIR  : — You  will  take  notice  that  we,  the  undersigned  fence  viewers 
of  said  town  of ,  after  full  hearing,  did  make  the  following  certifi- 
cate, to  wit :  (here  insert  a  copy  of  the  certificate,}  and  you  will  repair 
the  said  fence,  in  said  certificate  mentioned,  (or  make  it,  as  the  case 
may  be,~)  so  that  the  same  shall  be  a  good  and  sufficient  fence,  within 
twenty  days  from  the  time  you  shall  have  received  this  notice. 
Given  under  our  hands  this day  of ,  A.  D.  18 — . 

Fence  Viewers 

of  the 
Town  of . 

Form  of  Request  by  an  adjoining  owner,  after  determination  offence 
viewers,  to  make,  or  repair  partition  fence. 

To  A.  B.,  of  the  town  of ,  in  the  county  of : 

The  fence  viewers  of  the  said  town  of ,  having,  on  the 

day  of ,  A.  D.  18 — ,  determined  and  certified  that  a  certain  par- 
tition fence,  between  or  adjoining  in  said  town,  so  far  as  it  belongs  to 
you  to  maintain  the  same,  is  not  a  good  and  sufficient  fence ;  you  are, 
therefore,  hereby  requested  to  repair  the  same,  so  as  to  make  it  good 


ClIAP.  3.]  INCLOSUEES    AND    FENCES.  351 

and  sufficient,  within  twenty  days  from  this  date,  (or  make  the  same, 
as  the  case  may  be,)  and  in  default  thereof,  I  shall  apply  to  two  jus- 
tices of  the  peace  of  the  said  county  of ,  for  an  order  to  authorize 

me  to  repair  (or  make)  the  said  fence,  and  requiring  you  to  reimburse 
my  costs  and  charges  thereof.  C.  D. 

Dated  this  -   -  day  of ,  A.  D.  18—. 

In  proceeding  under  the  Act  regulating  Inclosures,  it  is  necessary 
that  the  justices  of  the  peace,  before  whom  proceedings  are  had,  should 
notify  the  defendant  of  the  same.  An  appeal  lies  from  the  decision  of 
two  justices  of  the  peace,  under  the  Act  regulating  Inclosures.1 

Form  of  Notice  by  two  Justices  of  the  Peace  to  person  refusing  or 
neglecting  to  make  or  repair  fence,  &c.  Of  Proceedings  to  be  had 
before  them. 

STATE  OF  ILLINOIS,  ) 

COUNTY,      j 

To  A.  B.: 

You  are  hereby  notified  that  C.  D.  has  this  day  filed  with  E.  F., 
Esquire,  a  justice  of  the  peace  in  and  for  said  county,  a  certain  certifi- 
cate of  fence  viewers  of  the  town  of ,  in  said  county,  of  which  the 

following  is  a  copy  :  (here  insert  a  copy  of  certificate  of  viewers,)  and 
that  the  said  C.  D.  has  applied  to  the  above  named  E.  F.,  Esquire,  and 
also  to  Gr.  H.,  Esquire,  a  justice  of  the  peace  in  and  for  said  county, 
to  hear  proof  in  the  premises,  and  for  such  order  thereon  as  the  case 

shall  require ;  and  that  the  said  justices  will,  on  the day  of , 

A.  D.  18—,  at  —  o'clock  —  M.,  at  the  office  of  the  said  E.  F., 

Esquire,  in  the  town  of ,  in  said  county,  proceed  to  hear  such 

proof  as  may  be  then  and  there  offered,  and  to  make  such  order  in  the 
premises  as  the  case  shall  seem  to  require.  You  can  then  and  there 
appear,  and  be  heard,  if  you  so  desire. 

Given  under  the  hands  of  said  justices  this day  of ,  of 

,  A.  D.  18—.  E.   F. 

G.  H. 

Form  of  Order  of  two  Justices  in  relation  to  Partition  Fence  between 
adjoining  Lands. 

STATE  OF  ILLINOIS,  ) 

COUNTY,      j  Sf 

Whereas,  the  fence  viewers  of  the  town  of ,  in  said  county,  did, 

on  the day  of ,  A.  D.   18 — ,  determine  and  certify  as  fol- 

(1)  1  Scam.  615. 


352  INCLOSURES    AND    FENCES.  [PART  3, 

lows,  to  wit :  (here  insert  a  copy  of  the  certificate  of  viewers  in  the 
case,)  and  whereas  it  has  been  made  to  appear  to  us,  by  satisfactory 
proof,  that  the  said  A.  B.  was  duly  notified  of  the  action  and  determi- 
nation of  said  viewers ;  and  whereas  it  has  further  been  made  to  appear 
to  us,  by  other  like  satisfactory  proof,  that  the  said  C.  D.  did,  on  the 

day  of ,  A.   D.  18 — ,  request  the   said   A.  B.   to   repair 

the  said  fence,  (or  as  the  case  may  be,)  within  twenty  days  from 
that  date ;  and  it  further  appearing,  by  like  satisfactory  proof,  that  the 
said  A.  B.  hath  wholly  refused  to  repair  (or  as  the  case  may  be,)  said 
fence,  therefore  we,  the  undersigned  justices  of  the  peace,  in  and  for  the 
county  aforesaid,  due  notice  having  been  given  by  us  to  the  said  A.  B., 
being  now  fully  advised  in  the  premises,  do  order  that  the  said  C.  D.  re- 
pair (or  a*  the  case  may  be,)  said  fence,  and  that  he  be  reimbursed  his 
costs  and  charges  therefor  from  the  said  A.  B. 

Witness  our  hands  this day  of ,  A.  D.  18 — . 

E.  F. 

G.  H. 

"  Sec.  13.  If  the  delinquent  shall  neglect  or  refuse  to  pay  the  party 
injured  the  moiety  of  the  charge  of  any  fence  before  made,  or  to  reim- 
burse the  costs  and  charges  of  making  or  repairing  the  said  fence  or 
fences,  under  the  order  aforesaid,  then  the  same  shall  be  levied  upon 
the  delinquent's  goods  and  chattels,  under  warrant  from  a  justice  of  the 
peace,  by  distress  and  sale  thereof,  the  overplus,  if  any,  to  be  returned 
to  the  said  delinquent." 

Form  of  Warrant  of  Distress  by  a  Justice  of  the  Peace  against  a 
Delinquent  failing  to  comply  with  the  foregoing  order. 

STATE  OF  ILLINOIS,  ) 
COUNTY,       \  ss' 


The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : 

Whereas,  it  was,  on  the day  of ,  A.  D.  18 — ,  ordered  by 

E.  F.  and  Gr.  H.,  two  justices  of  the  peace  in  and  for  said  county,  that, 
(here  recite  the  order,)  and  whereas  it  has  been  made  to  appear  to  me, 
the  undersigned,  a  justice  of  the  peace  in  and  for  said  county,  that  the 
said  C.  D.  has  repaired  (or  as  the  case  may  be,)  the  said  fence,  and 
that  the  said  C.  D.  hath  not  been  reimbursed  his  costs  and  charges  from 


CHAP.  9.]  INCLOSUKES  AND  FENCES.  353 

the  said  A.  B.,  which  is dollars  and cents.  Now,  there- 
fore, these  are  to  command  you,  that  of  the  goods  and  chattels  of  the 
said  A.  B.  to  be  found  in  "your  county,  you  make  the  sum  of dol- 
lars and cents,  together  with  costs  of  proceedings,  and  make  re- 
turn of  this  writ  to  me,  the  said  justice,  with  your  doings  thereon, 
within  seventy  days  from  the  date  hereof.  And  this  you  will  not  omit. 

Given  under  my  hand  and  seal  this of ,  A.  D.  18 — . 

L.  M.,  J.  P.     [SEAL.] 

"  Sec.  14.  But  nothing  herein  contained  shall  be  intended  to  pre- 
vent or  debar  any  person  or  persons  from  inclosing  his  or  their  grounds 
in  any  manner  they  please,  with  sufficient  walls  or  fences  of  timber, 
other  than  those  heretofore  mentioned,  or  by  dikes,  hedges  and  ditches, 
all  such  walls  and  fences  to  be  in  height  at  least  five  feet  from  the 
ground ;  and  all  dikes  to  be  at  least  three  feet  in  height  from  the  bottom 
of  the  ditch,  and  planted  and  set  with  thorns  and  other  quickset,  so 
that  such  inclosures  shall  fully  answer  and  secure  the  several  purposes 
meant  to  be  answered  and  secured  by  this  law  :  Provided,  That  such 
walls  or  fences  of  timber,  other  than  those  heretofore  mentioned,  and 
dikes,  hedges  and  ditches  shall  be  subject  to  all  provisions,  inspections 
and  restrictions,  to  which  by  this  chapter,  any  other  inclosure  or  fence 
is  made  liable,  according  to  the  true  intent  and  meaning  hereof. 

"  Sec.  15.  If  any  horse,  mare,  gelding,  colt,  mule  or  ass,  sheep,  lamb, 
goat,  kid,  bull,  cow,  heifer,  steer  or  calf,  or  any  hog,  shoat  or  pig,  shall 
break  into  any  person's  inclosure,  the  fence  being  good  and  sufficient, 
the  owner  of  such  animal  or  animals,  shall  be  liable  in  an  action  of  tres- 
pass, to  make  good  all  damages  to  the  owner  or  occupier  of  the  inclos- 
ure, for  the  first  offense  single  damages  only,  and  ever  afterward}* 
double  the  damages  sustained. 

"  Sec.  16.  The  condition  of  the  fence  at  the  time  the  trespass  wa,< 
committed,  may  be  proven  upon  trial,  and  on  complaint  made  by  the 
party  injured  before  any  justice  of  the  peace  of  the  county  wherein  such 
trespass  shall  be  made,  such  justice  is  hereby  authorized  and  required 
to  issue  a  summons  without  delay,  to  three  respectable  householders  of 
the  neighborhood,  noways  related  to  either  of  the  parties,  nor  interested 
concerning  the  trespass,  reciting  the  complaint,  and.  requiring  them  to 
view  the  fence  where  the  trespass  is  complained  of,  and  their  testimony 
in  such  case  shall  be  good  evidence  touching  the  sufficiency  of  the 
fence. 

"  Sec.  17.     If  any  person  injured  for  want  of  such  sufficient  fence. 

22 


354  INCLOSUUES   AND    FENCES.  [PART  3, 

shall  hurt,  wound,  kill,  lame  or  destroy,  or  shall  cause  to  be  hurt, 
wounded,  killed,  lamed  or  destroyed,  by  shooting,  hunting  with  dogs, 
or  otherwise,  any  of  the  aforesaid  animals,  he  or  she  so  offending, 
shall  satisfy  or  pay  the  owner  of  the  same,  the  damages  with  costs, 
recoverable  as  aforesaid :  Provided,  That  if  the  party  liable  to  dam- 
ages as  aforesaid,  in  either  case,  will  abide  and  pay  what  may  be 
deemed  reasonable  by  three  neighbors,  indifferently  chosen  to  assess 
the  same,  it  shall  be  a'  bar  against  such  suit. 

"  Sec.  18.  All  animals  trespassing,  the  owners  of  the  same  (if 
known)  shall  be  notified  thereof,  and  if  they  shall  refuse  to  secure 
the  said  animals  and  prevent  their  trespassing,  the  persons  on  whom 
the  trespass  was  committed,  shall  be  authorized  to  secure  the  same, 
supplying  the  aforesaid  animals  with  provender  and  water,  for  which 
they  shall  receive  a  compensation  from  said  owner  :  Provided,  That  if 
said  animals  shall  receive  any  abuse  or  damage  from  said  persons,  they 
shall  be  barred  from  any  compensation  for  the  aforesaid  services. 

"  Sec.  19.  When  any  person  or  persons  may,  by  mistake,  erect  and 
make  a  fence  or  inclosure  on  the  land  of  another  person,  then,  and  in 
that  case,  when  the  line  or  lines  are  legally  run  by  the  proper  authority, 
and  the  fence  and  inclosures  are  known  to  be  on  the  land  of  such  other 
person,  the  person  or  persons  making  such  fence  or  fences  as  aforesaid, 
through  mistake,  shall  be  empowered  and  authorized  by  this  chapter  to 
enter  into  the  said  land  of  another,  doing  as  little  damage  as  possible, 
and  take  away  the  rails,  posts,  wood  and  stones  of  which  said  fence  or 
fences  are  made  and  erected,  within  one  year  from  the  time  said  line 
or  lines  may  be  legally  run. 

"  Sec.  20.  The  owner  or  owners  of  any  land  whereon  a  fence  or 
fences  may  have  been  made  by  mistake,  shall  not  throw  down,  nor  in 
any  manner  disturb  the  said  fence  or  fences  for  one  year  from  the  time 
euch  mistake  is  found  out. 

"  Sec.  21.  When  either  the  owner  of  the  rails,  or  the  owner  of  the 
land  is  desirous  of  having  the  line  or  lines  run,  dividing  such  land,  then 
in  that  case,  the  person  wishing  such  survey,  shall  give  the  other  person 
notice  in  writing,  ten  days  before  such  survey  is  made,  of  the  time  and 
place  of  making  such  survey." 


CHAP.  10.]  MARRIAGES.  355 


CHAPTER   X. 

OF  MARRIAGES. 

Rev.  Stat.  353,  Sec.  1.  "  All  male  persons  over  the  age  of  seven- 
teen years,  and  females  over  the  age  of  fourteen  years,  may  contract  and 
be  joined  in  marriage  :  Provided,  In  all  cases  where  either  party  is  a 
minor,  the  consent  of  parents  or  guardians  be  first  had,  as  is  hereinafter 
required. 

"  Sec.  2.  No  person  of  color,  negro  or  mulatto,  of  either  sex,  shall 
be  joined  in  marriage  with  any  white  person,  male  or  female,  in  this 
State  ;  and  all  marriages  or  marriage  contracts  entered  into  between 
such  colored  person  and  white  person,  shall  be  null  and  void  in  law ; 
and  any  person  so  marrying,  or  contracting  to  marry,  shall  be  liable  to 
pay  a  fine,  be  whipped  in  not  exceeding  thirty-nine  lashes,  and  be  im- 
prisoned not  less  than  one  year,  and  shall  be  held  to  answer  in  no  other 
than  a  criminal  prosecution,  by  information  or  indictment ;  and  any 
clerk  who  shall  knowingly  issue  a  license  to  any  such  colored  person, 
negro  or  mulatto,  or  to  any  white  person,  to  be  joined  to  a  negro  or 
mulatto,  in  manner  aforesaid  ;  or  if  any  officer,  or  person  authorized 
to  solemnize  marriages  in  this  State,  shall  join  any  such  colored  person, 
negro  or  mulatto  in  marriage  with  a  white  person,  such  magistrate  or 
other  person,  so  offending,  as  aforesaid,  on  conviction  thereof,  shall  be 
fined  in  a  sum  not  less  than  two  hundred  dollars,  to  be  sued  for  and  re- 
covered, in  any  court  of  record  in  this  State,  the  one  half  for  the  use 
of  the  county  in  which  said  suit  is  brought,  and  the  other  half  to  the 
person  suing  for  the  same  ;  and  thereafter  be  ineligible  to  any  office  in 
this  State. 

"  Sec.  3.  All  persons  belonging  to  any  religious  society,  church  or 
denomination,  may  celebrate  their  marriage  according  to  the  rules  and 
principles  of  such  religious  society,  church  or  denomination  ;  and  a  cer- 


356  MARRIAGES.  [PART  3, 

tificate  of  such  marriage,  signed  by  the  regular  minister,  or  if  there  be 
no  minister,  then  by  the  clerk  of  such  religious  society,  church  or  de- 
nomination, registered  as  hereinafter  directed,  shall  be  evidence  of  such 
marriage. 

"  Sec.  4.  Any  persons  wishing  to  marry,  or  be  joined  in  marriage, 
may  go  before  any  regular  minister  of  the  gospel,  authorized  to  marry, 
by  the  custom  of  the  church  or  society  to  which  he  belongs,  any  justice 
of  the  supreme  court,  judge  of  any  inferior  court,  or  justice  of  the 
peace,  and  celebrate  or  declare  their  marriage,  in  such  manner  and  form 
as  shall  be  most  agreeable. 

"  Sec.  5.  Any  minister  of  the  gospel,  justice  of  the  supreme  court, 
judge  or  justice  of  the  peace,  who  shall  celebrate  any  marriage,  shall 
make  a  certificate  of  such  marriage,  and  return  the  same,  with  the 
license,  to  the  clerk  of  the  county  commissioners'  court,  who  issued 
such  license,  within  thirty  days  after  solemnizing  such  marriage. 

"  Sec.  6.  The  clerk  of  the  county  commissioners'  court,  after  re- 
ceiving such  certificate,  shall  make  a  registry  thereof,  in  a  book  to  be 
kept  by  him  for  that  purpose  only ;  which  registry  shall  contain  the 
Christian  and  surnames  of  both  the  parties,  the  time  of  their  marriage, 
and  the  name  of  the  person  certifying  the  same  :  and  said  clerk  shall. 
at  the  same  time,  indorse  on  such  certificate,  that  the  same  is  registered, 
and  the  time  when ;  which  certificate  shall  be  carefully  filed  and  pre- 
served ;  and  the  same,  or  a  certified  copy  of  the  registry  thereof,  shall 
be  evidence  of  the  marriage  of  the  parties. 

"  Sec.  7.  If  any  clerk  shall,  for  more  than  one  month,  refuse  or 
neglect  to  register  any  marriage  certificate,  which  has  been,  or  may  here- 
after be  delivered  to  him  for  that  purpose,  (his  fee  therefor  being  paid,) 
he  shall  be  liable  to  be  removed  from  office,  and  shall  moreover  pay  the 
sum  of  one  hundred  dollars,  to  the  use  of  the  party  injured,  to  be  re- 
covered by  action  of  debt  in  any  court  having  cognizance  of  the  same. 

"Sec.  8.  If  any  minister,  justice  of  the  supreme  court,  judge  or 
justice  of  the  peace,  having  solemnized  a  marriage,  or  clerk  of  any  reli- 
gious society,  as  the  case  may  be,  shall  not  make  return  of  a  certificate 
of  the  same,  as  required,  within  the  time  limited,  to  the  clerk  of  the 
commissioners'  court  of  the  county  in  which  such  marriage  was  solem- 
nized, he  shall  forfeit  and  pay  one  hundred  dollars  for  each  case  so  ne- 
glected, to  go  to  the  use  of  the  county,  to  be  recovered  by  indictment. 
And  if  any  minister  of  the  gospel,  justice  of  the  supreme  court,  judge, 
or  any  other  officer  or  person,  except  as  hereinbefore  excepted,  shall 
solemnize  and  join  in  marriage  any  couple  without  a  license,  as  afore- 


CHAP.  10.]  MARRIAGES.  357 

said,  he  shall,  for  every  such  offense,  forfeit  and  pay  one  hundred  dol- 
lars, to  the  use  of  the  county,  to  be  recovered  by  indictment. 

"  Sec.  9.  No  person  shall  be  joined  in  marriage,  as  aforesaid, 
unless  their  intention  to  marry  shall  have  been  published  at  least  two 
weeks  previous  to  such  marriage,  in  the  church  or  congregation  to 
which  the  parties  or  one  of  them  belong,  or  unless  such  persons  have 
obtained  a  license,  as  herein  provided. 

"  Sec.  10.  In  all  cases  when  publication  of  such  intention  to  marry 
has  not  been  made  as  before  described,  the  parties  wishing  to  marry 
shall  obtain  a  license  from  the  clerk  of  the  county  commissioners'  court 
of  the  county  where  such  marriage  is  to  take  place,  which  license  shall 
authorize  any  regular  minister  of  the  gospel,  authorized  to  marry  by 
the  church  or  society  to  which  he  belongs,  any  justice  of  the  supreme 
court,  judge,  or  justice  of  the  peace,  to  celebrate  and  certify  such 
marriage ;  but  no  such  license  shall  be  granted  for  the  marriage  of  any 
male  under  twenty-one  years  of  age,  or  female  under  the  age  of  eighteen 
years,  without  the  consent  of  his  or  her  father,  or  if  he  be  dead  or 
incapable,  of  his  or  her  mother  or  guardian,  to  be  noted  in  such  license. 
And  if  any  clerk  shall  issue  a  license  for  the  marriage  of  any  such 
minor  without  consent  as  aforesaid,  he  shall  forfeit  and  pay  the  sum 
of  three  hundred  dollars  to  the  use  of  such  father,  mother,  or  guardian, 
to  be  sued  for  and  recovered  in  any  court  having  cognizance  thereof ; 
and  for  the  purpose  of  ascertaining  the  age  of  the  parties,  such  clerk  is 
hereby  authorized  to  examine  either  party  or  other  witness  on  oath." 

Form  of  Marriage  Ceremony. 

{The  man  and  woman  rising,  the  justice  will  say  to  the  man,) 
Will  you  have  this  woman  to  be  your  wedded  wife,  to  live  together 
after  God's  ordinance,  in  the  holy  estate  of  matrimony ;  to  love  her, 
comfort  her,  honor  and  keep  her  in  sickness  and  in  health  ;  and  for- 
saking all  others,  keep  thee  only  unto  her,  so  long  as  you  both  shall 
live  ? 

{Then  addressing  the  woman,  the  justice  will  say,)  Will  you  have 
this  man  to  be  your  wedded  husband,  to  live  together  after  God's 
ordinance,  in  the  holy  estate  of  matrimony ;  to  obey  him  and  serve 
him,  love,  honor  and  keep  him  in  sickness  and  in  health ;  and  forsaking 
all  others,  keep  thec  only  unto  him,  so  long  as  you  both  shall  live ''. 

( The  parties  answering  in  the  affirmative,  the  justice  will  then 
instruct  them  to  join  hands,  and  say,}  By  this  act  of  joining  hands, 


358  MARRIAGES.  [PART  3, 

you  take  upon  yourselves  the  relation  of  husband  and  wife  ;  and  for- 
asmuch as  you  have  consented  together  in  holy  wedlock,  in  the  presence 
of  these  witnesses,  I  do,  in  accordance  with  the  laws  of  the  State  of 
Illinois,  pronounce  you  husband  and  wife. 

A  short  form  of  Marriage  Ceremony. 

(The  justice  will  direct  the  parties  to  rise  and  join  hands,  and 
then  say,)  By  this  act  of  joining  hands,  you  do  take  upon  yourselves 
the  relation  of  husband  and  wife  ;  and  solemnly  promise  and  engage, 
in  the  presence  of  these  witnesses,  to  love  and  honor,  comfort  and 
cherish  each  other  as  such,  so  long  as  you  both  shall  live  :  therefore, 
in  accordance  with  the  laws  of  the  State  of  Illinois,  I  do  hereby  pro- 
nounce you  husband  and  wife. 

Form  of  Certificate  of  Marriage. 
STATE  OF  ILLINOIS,  ) 

\_   cc 

COUNTY,      ) 

I,  the  subscriber,  a  justice  of  the  peace  in  and  for  the  said  county, 
do  hereby  certify  that  the  marriage  of  A.  B.  and  C.  D.,  the  persons 
in  the  within  license  named,  was  solemnized  by  me  on  the day 

Af  _  1  Q 

I    JL  v  * 

L.  M., 

Justice  of  the  Peace. 


CUAP.  11.]  RIGHT    OP    PROPERTY.  359 


CHAPTER    XI. 

OF  TRIAL  OF  THE  RIGHT  OF  PROPERTY. 

Rev.  Stat.  474,  Sec.  1.  "  Whenever  an  execution  or  writ  of 
attachment  shall  be  levied  by  any  sheriff  or  coroner  upon  any  personal 
property,  and  such  property  shall  be  claimed  by  any  person  or  persons, 
other  than  the  defendant  in  such  execution  or  attachment,  by  giving 
to  the  sheriff  or  coroner,  notice  in  writing,  of  his,  her,  or  their  claim 
and  intention  to  prosecute  the  same,  it  shall  be  the  duty  of  such  sheriff 
or  coroner,  forthwith  to  summon  a  jury  of  twelve  respectable  house- 
holders of  the  county,  to  meet  at  a  place  to  be  designated  by  him, 
before  the  day  appointed  for  the  sale  of  such  property  ;  and  then  and 
there  proceed  to  inquire  by  the  oath  of  said  jury,  whether  the  right  of 
such  property  be  in  such  claimant  or  not. 

' '  Sec.  2.  It  shall  be  the  duty  of  such  sheriff  or  coroner,  to  notify 
the  plaintiff  in  the  execution  or  attachment,  of  such  claim,  and  the 
time  and  place  of  trial ;  and  on  the  day  appointed,  the  sheriff  or 
coroner  shall  swear  the  jury,  and  such  witnesses  as  may  be  produced, 
by  either  party,  or  may  postpone  the  trial  such  reasonable  time,  on  the 
application  of  either  party,  as  he  shall  think  proper,  for  the  purpose  of 
procuring  testimony. 

"  Sec.  3.  In  all  cases  of  the  trial  of  the  right  of  property  before 
any  sheriff  or  coroner,  it  shall  be  the  duty  of  such  sheriff  or  coroner  to 
subpoena  such  witnesses  as  shall  be  required  by  either  party  to  such 
trial,  to  attend  at  the  time  and  place  at  which  such  trial  shall  be  held. 

"  Sec.  4.  In  all  cases  where  a  witness  shall  be  so  subpoenaed,  and 
shall  fail  to  attend  at  such  trial  conformably  thereto,  and  in  all  case* 
where  a  juror  shall  fail  to  attend  the  same  when  subpoenaed  by  such 
sheriff  or  coroner,  such  sheriff  or  coroner  shall  have  power  to  compel 


360  RIGHT    OF    PROPERTY.  [PART  3, 

their  attendance,  in  the  same  manner  as  may  be  done  in  the  trial  of 
causes  before  justices  of  the  peace,  and  in  the  circuit  courts  of  this 
State. 

"  Sec.  5.  And  any  fine  which  such  sheriff  or  coroner  may  impose 
for  such  contempts,  may  be  collected  in  the  'manner  provided  for  the 
collection  of  costs  by  the  seventh  section  of  this  chapter. 

"  Sec.  6.  After  the  jury  shall  have  agreed  on  their  verdict,  the 
sheriff  or  coroner  shall  reduce  the  same  to  writing,  and  it  shall  be 
signed  by  all  the  jurors,  and  the  sheriff  or  coroner  shall  thereupon 
restore  the  property,  if  found  to  belong  to  the  person  or  persons  claim- 
ing, or  shall  proceed  on  such  execution  or  attachment,  if  the  property 
shall  not  be  found  to  be  in  the  claimant,  in  the  same  manner  as  if  no 
claim  had  been  made. 

"  Sec.  7.  The  sheriff  or  coroner  shall  make  up  a  bill  of  all  the 
costs  accruing  on  such  trial,  according  to  the  provisions  of  law  regulat- 
ing the  fees  of  officers  for  similar  services,  and  annex  the  same  to  the 
verdict  of  the  jury  ;  and  shall  have  power  to  collect  the  same  from  the 
claimant  of  such  property,  if  the  verdict  be  against  him,  or  from  the 
plaintiff  or  plaintiffs  in  the  execution,  if  such  verdict  be  for  the  claim- 
ant, in  the  same  manner  that  bills  of  fees  in  other  cases  are  authorized 
by  law  to  be  collected. 

"  Sec.  8.  In  case  either  party  shall  think  himself  or  herself  ag- 
grieved by  the  verdict  of  the  jury,  he  or  she  may  appeal  to  the  circuit 
court,  in  which  case  the  party  appealing  shall  give  bond,  with  sufficient 
security,  to  prosecute  such  appeal  without  delay,  and  to  pay  all  costs 
that  have  accrued  or  may  accrue  on  such  appeal,  if  judgment  be  given 
against  him,  in  the  circuit  court ;  which  bond  shall  be  in  a  sum  suffi- 
cient to  cover  all  costs,  and  be  payable  to  the  opposite  party ;  and  the 
sheriff  or  coroner  shall  thereupon  deliver  to  the  clerk  of  the  circuit 
court,  the  bond  aforesaid,  and  all  the  papers  relating  to  such  trial,  and 
the  clerk  shall  enter  said  appeal  on  his  docket,  and  the  court  shall 
proceed  to  try  the  right  to  such  property,  in  the  same  manner  as  is 
before  directed  in  this  chapter :  and  in  all  such  cases,  judgment  shall 
l«?  given  against  the  party  failing,  for  all  costs,  and  the  clerk  shall  issue 
execution  for  the  same. 

"  Sec.  9.  In  all  cases  where  any  personal  property  shall  lie  taken 
by  virtue  of  an  execution  or  attachment,  issued  by  any  justice  of  the 
peace,  which  shall  be  claimed  by  any  person  or  persons,  other  than  the 
defendant,  in  such  execution  or  attachment;  and  such  claimant  shall 
give  notice  in  writing  of  his  or  their  claim  and  intention  to  prosecute 


CHAP.  11.]  KIGIIT  OF  PROPERTY.  361 

the  same,  it  shall  be  the  duty  of  the  constable  to  notify  the  plaintiff  in 
execution  or  attachment,  of  such  claim,  and  the  time  and  place  of  trial ; 
and  if  the  justice  who  issued  such  execution  or  attachment  reside  in 
another  county,  be  absent  from  the  county,  or  unable  to  attend  to  such 
trial,  it  shall  be  the  duty  of  the  constable  serving  such  execution  or 
attachment,  to  notify  the  plaintiff  in  execution,  that  he  will  attend 
before  some  other  justice  of  the  peace  of  the  county,  (naming  him,) 
and  shall  also  designate  some  day  and  hour  for  the  trial  of  the  right  of 
said  property,  of  which  time  and  place,  the  claimant  shall  also  have 
notice. 

"  Sec.  10.  The  same  proceedings  shall  be  had  before  the  constable 
serving  such  execution  or  attachment,  together  with  the  justice  before 
whom  the  trial  of  the  right  of  property  may  be  had,  as  are  in  this  chap- 
ter provided  for  the  trial  of  the  right  of  property  before  sheriffs  and 
coroners  ;  but  the  justice  shall  issue  all  process  necessary  in  such  trials. 
He  shall  also  administer  the  oaths  to  the  jury  and  witnesses,  and  retain 
the  papers  relating  to  the  proceedings  ;  and  in  case  the  property  shall 
appear  to  belong  to  the  claimant,  the  justice  shall  enter  judgment  against 
the  plaintiff  in  execution  or  attachment,  for  the  costs  that  may  have 
accrued  on  such  suit ;  and  on  failure  of  the  plaintiff  to  pay  the  same, 
the  justice  may  issue  execution  therefor  ;  but  in  all  cases  where  it  shall 
appear  that  the  property  claimed  belongs  to  the  defendant  in  execution, 
the  justice  shall  enter  judgment  against  the  claimant  of  the  property 
for  the  amount  of  costs  that  shall  have  accrued,  and  issue  execution  there- 
for as  in  other  cases  ;  and  in  case  of  an  appeal,  shall  take  the  bond 
and  transmit  the  same,  with  the  other  papers,  to  the  clerk,  as  aforesaid. 

"  Sec.  11.  It  shall  be  the  duty  of  any  justice  of  the  peace,  other 
than  the  one  issuing  the  execution  or  attachment  under  which  a  levy 
has  been  made,  when  notified  by  any  constable,  of  any  person  or  per- 
sons claiming  property  levied  upon  as  hereinbefore  provided,  to  enter 
such  case  on  his  docket,  and  to  proceed  in  all  cases,  to  have  the  right 
of  such  property  tried  as  if  the  execution  had  been  issued  by  him. 

"  Sec.  12.  In  no  case  of  the  trial  of  the  right  of  property  under 
this  chapter,  shall  the  defendant  in  execution  be  a  competent  witness, 
and  all  appeals  from  the  judgments  on  the  trial  of  the  right  of  property, 
shall  be  demanded  on  the  day  of  such  trial,  and  bond  entered  into  be- 
fore the  clerk  of  the  circuit  court  within  five  days  from  such  trial ;  and 
in  all  cases  of  the  trial  of  the  right  of  property  before  a  justice  of  the 
peace,  either  party  may  take  the  case  into  the  circuit  court  by  writ  of 
certiorari,  as  in  other  trials  before  justices  of  the  peace :  Provided,  That 


8G2  RIGHT    OF    PROPERTY.  [PART  3, 

in  all  cases  of  said  appeals,  the  praying  thereof  shall  be  a  supersedeas, 
and  stay  all  further  proceedings  until  the  expiration  of  five  days. 

"  Sec.  13.  In  all  cases  when  the  plaintiff  in  the  execution  neither 
resides  in  the  county  where  judgment  was  rendered,  nor  in  the  county 
in  which  such  trial  of  the  right  of  property  is  had,  it  shall  not  be 
necessary  for  the  constable  to  give  said  plaintiff  notice  ;  but  the  trial 
shall  be  conducted  in  the  same  manner  as  if  actual  notice  had  been 
given ;  and  in  case  the  property  shall  be  found  to  be  the  property  of 
the  claimant,  the  plaintiff  in  the  execution  shall  be  bound  for  all  costs 
that  may  have  accrued. 

"  Sec.  14.  The  verdict  of  the  jury  in  all  cases  under  this  chapter, 
shall  be  a  complete  indemnify  to  the  sheriff  or  other  officer,  in  proceed- 
ing to  sell  or  restore  any  such  property  according  to  the  verdict ;  and 
in  case  of  an  appeal,  the  sheriff  or  other  officer  shall  retain  such  prop- 
erty, unless  the  party  claiming,  or  the  defendant  in  the  execution  shall 
enter  into  a  bond,  with  sufficient  security,  for  the  delivery  of  such  pro- 
perty to  the  sheriff  or  other  officer,  if  the  judgment  of  the  court  shall 
be  against  the  claimant. 

"  Sec.  15.  In  trials  of  the  right  of  property  taken  on  execution, 
attachment  or  other  process,  by  constables,  the  number  of  jurors  shall 
be  six  instead  of  twelve,  unless  all  the  parties  to  the  trial  shall  agree 
upon  a  larger  number,  not  exceeding  twelve  ;  in  which  case  the  num- 
ber agreed  on  shall  constitute  the  jury :  Provided,  That  either  party 
shall  have  the  right  to  require  twelve  jurors,  upon  advancing  the  ad- 
ditional costs  and  fees  accruing  in  consequence  of  increasing  the  num- 
ber over  six ;  such  additional  costs  and  fees  not  being  in  any  event 
chargeable  against  the  other  party." 

On  the  trial  of  the  right  of  property  between  a  mortgagee  of  chattels, 
and  an  execution  creditor  of  the  mortgagor,  evidence  may  be  introduced 
to  prove  what  a  deceased  witness  testified  upon  a  former  trial,  between 
the  same  parties.1 

A  justice  of  the  peace,  before  whom  a  trial  of  the  right  of  property 
is  had,  may  proceed  with  the  hearing,  and  render  judgment  upon  the 
finding  of  the  jury,  when  he  has  been  notified  by  the  constable  that  the 
property  levied  upon  has  been  claimed,  and  that  the  time  and  place 
have  been  named.2 

The  giving  of  the  notices  for  trial  in  such  a  case,  is  exclusively  the 
duty  of  the  constable,  and  he  will  be  held  responsible  for  any  damages 

(1)  4  Scam.  575.  (2)  14  111.  62. 


CHAP.  11.]  RIGHT  OF  PROPERTY.  368 

which  may  arise.  The  justice  acts  upon  the  return  of  the  officer,  and 
it  matters  not  to  him  whether  it  be  true  or  false.1 

In  an  action  of  trespass,  de  bonis  asportatis,  against  others  than  the 
constable  who  made  the  levy  and  sale,  the  plaintiff  should  show  title  to 
the  property  sold.  It  is  not  a  legal  presumption,  because  the  property 
was  seized  and  sold  under  an  execution  against  him,  that  it  was  his 
property.2 

The  provision  of  the  statute  which  excludes  the  defendant  in  ex- 
cution  from  being  a  witness,  is  confined  exclusively  to  trials  of  the  right 
of  property.8 

A  landlord  who  has  distrained  upon  the  goods  of  his  tenant,  has 
a  sufficient  interest  in  them  to  enable  him  to  be  the  claimant  of  the 
same,  on  a  trial  of  the  right  of  property,  if  they  are  subsequently  taken 
in  execution.4 

The  statute  does  not  require  the  claimant,  in  the  notice  he  serves  on 
the  constable,  to  state  on  whose  execution  the  levy  has  been  made.  It 
is  sufficient  to  notify  the  constable  that  he  claims  the  goods  levied  on, 
forbids  the  sale,  and  intends  to  prosecute  his  claim.  Anything  more  is 
surplusage,  and  could  not  vitiate  the  notice.5 

A  trial  of  the  right  of  property,  which  results  in  a  verdict  against 
the  claimant,  does  not  establish  or  confirm  a  right  to  the  property  in  the 
defendant  in  execution.6 

In  a  trial  of  the  right  of  property,  the  only  question  is,  whether  the 
property  levied  on  belongs  to  the  claimant,  and  the  verdict  will  be 
against  him,  unless  he  affirmatively  show  that  it  belongs  to  him,  and  is 
not  subject  to  sale  on  execution.7 

On  the  trial  of  the  right  of  property  in  the  circuit  court,  the  claim- 
ant cannot  object  to  the  execution  on  which  the  levy  has  been  made, 
on  the  ground  that  it  was  a  nullity  and  had  been  issued  by  a  court  not 
having  jurisdiction.  By  proceeding  in  this  manner  he  admits  the  valid- 
ity of  the  execution,  and  only  claims  that  it  has  been  levied  on  his 
property,  and  not  on  the  property  of  the  defendant  in  execution.8 

Form  of  Notice  to  Constable  of  Claim  of  Property  and  intention  to 
prosecute  the  trial  of  the  right  thereto  under  the  Statute. 

To  R.  S.,    Constable  : 

Sir : — I  hereby  claim  property  in  the  following  goods  and  chattels, 
to  wit:  (describe  the  articles  particularly,')  levied  upon  by  you,  by 

(1)  14  111.  62.       (2)  Ibid.        (3)  Ibid.;  1  Gil.  572.      (4)  1  Scam.  343. 
(5)  1  Scam.  268.     (6)  12  111.  387.     (7)  13  111.  20.          (8)  2  Scam.  22. 


\ 


364  RIGHT    OF    PROPERTY.  [PART    3, 

virtue  of  an  execution  (or  "  attachment,")  issued  by  L.  M.,  Esquire, 

a  justice  of  the  peace  of county,  and  to  you  delivered  in  favor 

of  A.  B.,  against  the  goods  and  chattels  of  C.  D.,  and  intend  to  prose- 
cute my  claim  to  the  same,  according  to  the  statute  in  such  case  made 
and  provided. 

Dated  this—    —day  of-      —,18—.  E.  F. 

Form  of  Notice  of  Trial  to  the  Plaintiff". 

A.  B. 

vs. 
C.  D. 

Sir: — Please  take  notice  that  the  following  described  property,  to 
wit :    (describe  the  property,)  levied  upon  by  virtue  of  an  execution, 

(or  "  attachment,")  issued  by  L.  M.,  a  justice  of  the  peace  of 

county,  and  in  favor  of  A.  B.,  against  the  goods  and  chattels  of  C.  D., 
to  me  delivered,  has  been  claimed  by  E.  F.,  who  has  notified  me  that 
he  intends  to  prosecute  his  claim  to  the  same,  according  to  the  statute 
in  such  case  made  and  provided. 

You  are,  therefore,  notified  that  the  said  claim  will  be  tried  before 
the  said  justice  (or,  if  he  is  absent  from  the  county  or  unable  to  attend, 

then  say,  "  before  Gr.  H.,  a  justice  of  the  peace  of  the  county  of , 

the  said  L.  M.  being  absent  from  said  county,"  or,  "unable  to 
attend,")  and  the  subscriber  and  a  jury  then  and  there  to  be  summoned 

and  sworn,  at  the  office  of in ,  in  said  county,  on  the 

day  of ,  18 — ,  at  —  o'clock  in  the noon. 

Dated  this day  of ,  18—. 

R.  S.,  Constable. 

Form  of  Subpoena  for  Witness  on  trial  of  right  of  property. 

STATE  OF  ILLINOIS, 
COUNTY, 

The  People  of  the  State  of  Illinois  to  J.  K.,  <&c.  : 

You  are  hereby  commanded  to  appear  before  L.  M.,  a  justice  of  the 
peace  of  the  said  county,  and   R.  S.,  constable  of  the  said  county,  at 

the  office  of  the  said ,  in ,  on  the  —  —  day  of ,  instant, 

(or  "  next,")  at o'clock  in  the  —    —  noon,  to  testify  before  them 

and  a  jury  of  the  county,  on  a  claim  of  property  made  by  E.  F.,  to  the 
goods  and  chattels  levied  upon  by  the  said  constable,  by  virtue  of  an 
execution,  (or  "  attachment,")  to  him  delivered  in  favor  of  A.  B.. 


ClIAP.   11.]  RIGHT    OF    PROPERTY.  365 

against  the  goods  and  chattels  of  C.  D. ;  and  this  you  are  not  to  omit 
under  the  penalty  of  the  law. 

Given  under  the  hand  and  seal  of  the  said  justice,  this day  of 

,  185-. 

L.  M.,  /.  P.       [SEALj. 

Form  of  Finding  of  the  Jury  on  a  trial  of  the  right  of  property. 

A.  B.      J 

vs         >      Before  L.  M.,  Esquire,  Justice,  and  R.  S.,  Constable. 

C.  D.     ) 

We.  whose  names  are  hereunto  subscribed,  being  the  jury  called  to 
try  the  right  of  property  on  a  claim  made  by  E.  F.  to  the  following  de- 
scribed goods  and  chattels,  to  wit :  {describe  them  accurately,)  levied 
upon  by  R.  S.,  constable,  by  virtue  of  an  execution,  (or  "attachment,") 

issued  by  L.  M.,  Esquire,  a  justice  of  the  peace  of  the  county  of , 

in  favor  of  A.  B.,  against  the  goods  and  chattels  of  C.  D.,  do  upon 
our  oaths  say  that  the  property  of  the  said  goods  and  chattels  so  claimed 
is  (or  "  is  not  ")  in  said  claimant.  (Or,  if  part  only,  say,  "  of  the 
following  described  articles,  to  wit :  [describe  them,']  part  of  the  above 
so  claimed,  is  in  said  claimant." 

Witness  our  hands  this day  of  ,  18 — . 

[To  be  signed  by  all  the  jurors.] 

Form  of  Execution  for  Costs. 

STATE  OF  ILLINOIS, 
COUNTY, 

The  People  of  the  State  of  Illinois  to  any  Constable  of  said  County, 
GREETING  : 

We  command  you  that  of  the  goods  and  chattels  of  C.  D.,  in  your 

county,  you  make  the  sum  of dollars  and cents,  which  E.  F. 

lately  recovered  before  the  undersigned,  a  justice  of  the  peace  of  the 
said  county,  for  his  costs  by  him  laid  out  and  expended,  in  a  certain 
trial  of  the  right  of  property,  before  the  said  justice  and  R.  S.,  consta- 
ble of  the  said  county,  and  a  jury  for  that  purpose  summoned  and 
sworn,  wherein  the  said  E.  F.  was  claimant,  and  the  said  C.  D.  was 
defendant. 

Given  under  the  hand  and  seal  of  the  said  justice,  the day 

of-    — ,  185-. 

L.  M.,  J.  P.     [SEAL.] 


366  RIGHT    OF    PROPERTY.  [PART  4, 

Forthcoming  Bond  to  Constable  in.  case  of  Appeal. 

Know  all  men  by  these  presents,  that  we,  A.  B.  and  C.  D.,  are  held 

and  firmly  bound  unto  E.  F.,  a  constable  of  the  county  of ,  in 

the  sum  of dollars,  {double  the  amount  in  the  execution^)  to 

be  paid  to  the  said  E.  F.,  constable,  as  aforesaid,  to  which  payment, 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  ad- 
ministrators, jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals,  and  dated  the day  of ,  18 — . 

Whereas,  an  execution  has  been  issued  by  L.  M.,  Esquire,  a  justice 

of  the  peace   of  the  county  of ,  and  delivered  to  the   above 

named  constable,  in  favor  of  Gr.  H.,  against  the  goods  and  chattels  of 
I.  J.,  under  and  by  virtue  of  which  the  said  constable  has  levied  upon 
the  goods  and  chattels  following,  to  wit :  (Jiere  describe  the  property.') 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 
said  I.  J.  shall  deliver  the  said  goods  and  chattels  to  the  said  constable, 

on  the  first  day  of next,  at o'clock  in  the noon,  at 

the  dwelling  house  of  the  said  A.  B.,  so  that  the  said  goods  and  chat- 
tels may  be  then  and  there  sold  to  satisfy  the  said  execution,  then  this 
obligation  to  be  void,  otherwise  to  remain  in  full  force. 

Sealed  and  delivered     ^  A.  B.     [SEAL.] 

in  presence  of  \.  C.  D.     [SEAL.] 


CHAP.  1.]  CONSTABLE.  367 


PART    FOURTH. 

OF  THE  CONSTABLE,  HIS  ELECTION  AND  QUALIFICATION, 
AND  THE  POWERS  AND  DUTIES  OF  CONSTABLES  IN  BOTH 
CIVIL  AND  CRIMINAL  CASES. 

CHAPTER    I. 

OF  THE  OFFICE  OF  CONSTABLE. 

I.  OF  THE  CONSTABLE. 
II.  OF  THE  ELECTION  OF  CONSTABLES. 

1.  In  Counties  not  adopting  Township  Organization. 

2.  In  Counties  adopting  Township  Organization. 

III.  OF  QUALIFICATION. 

1.  In  Counties  not  adopting  Township  Organization. 

2.  In  Counties  adopting  Township  Organization. 

IV.  SPECIAL  CONSTABLES,  WHEN  AND  HOW  APPOINTED. 

I.    OF    THE    CONSTABLE. 

The  office  of  constable  is  one  of  great  antiquity ;  so  old,  indeed,  that 
in  the  statute  of  Winchester,  which  was  enacted  in  1276,  it  is  men- 
tioned as  having  long  existed.  The  word  constable  has  afforded  matter 
of  much  disquisition  among  the  learned.  Some  trace  it  to  the  Hebrew, 
others  to  the  Greek,  and  many  derive  it  from  the  German.1 

"  The  word  constable,"  says  Sir  William  Blackstone,  "  is  frequently 
said  to  be  derived  from  the  Saxon,  koning-stapel,  and  to  signify  the 
support  of  the  king.  But  as  we  borrowed  the  name  as  well  as  the  office 
of  constable  from  the  French,  I  am  rather  inclined  to  deduce  it,  with 
Sir  Henry  Spelman  and  Dr.  Cowel,  from  that  language  ;  wherein  it  is 
plainly  derived  from  the  Latin,  comes  stabuli,  an  officer  well  known  in 

(1)  Constables'  Hani.  5. 


368  CONSTABLE.  [PART  4. 

the  empire  ;  so  called,  because,  like  the  great  constable  of  France,  as 
well  as  the  lord  high  constable  of  England,  he  was  to  regulate  all  mat- 
ters of  chivalry,  tilts,  tournaments,  and  feats  of  arms,  which  were  per- 
formed on  horseback."1 

This  great  office  of  lord  high  constable  has  been  disused  in  England, 
except  only  upon  great  and  solemn  occasions,  as  the  king's  coronation 
and  the  like,  since  the  attainder  of  Stafford,  Duke  of  Buckingham, 
under  King  Henry  VIII. ;  and  in  France  it  was  suppressed  about  a 
century  after,  by  an  edict  of  Louis  XIII.  f  but  from  his  high  office,  as 
it  is  said,8  this  lower  constableship  was  first  drawn  and  fetched,  and  is, 
as  it  were,  a  very  finger  of  that  hand.  For  the  statute  of  Winchester, 
which  first  appoints  them,  directs  that  for  the  better  keeping  of  the 
peace,  two  constables,  in  every  hundred  and  franchise,  shall  inspect  all 
matters  relating  to  arms  and  armor. 

In  England,  from  whence  the  office  of  constable  has  been  borrowed  in 
this  country,  constables  are  of  two  sorts,  high  constables  and  petty  con- 
stables. The  former  are  appointed  at  the  court  leets  of  the  franchise 
or  hundred  over  which  they  preside,  or  in  default  of  that,  by  the  justices 
at  their  quarter  sessions.  The  petty  constables  are  inferior  officers  in 
every  town  and  parish,  subordinate  to  the  high  constable  of  the  hundred. 
These  petty  constables  have  two  offices  united  in  them,  the  one  ancient, 
the  other  modern.  Their  ancient  office  is  that  of  headborough,  tithing- 
man  or  borsholder,  and  who  are  as  ancient  as  the  time  of  King  Alfred, 
A.  D.  871 ;  their  more  modern  office  is  that  of  constable  merely,  which 
was  appointed  so  lately  as  the  reign  of  Edward  III.,  in  order  to  assist 
the  high  constable. 

By  the  common  law,  the  general  duty  of  all  constables,  both  high 
and  petty,  is  to  keep  the  peace  in  their  several  districts  ;  and  to  that 
purpose  they  are  armed  with  very  large  powers,  of  arresting  and  im- 
prisoning, of  breaking  open  houses,  and  the  like.4 

By  various  legislative  enactments,  the  duties  of  constables  have  been 
materially  extended  from  that  of  the  common  law,  which  has  occurred  in 
consequence  of  the  increased  powers  of  justices  of  the  peace.  Consta- 
bles are,  by  the  common  law,  it  is  said,  regarded  as  the  proper  and 
known  officers  of  justices  of  the  peace;5  and  it  is  laid  down,  that,  in 
England,  if  an  act  of  parliament  direct  that  a  justice  shall  issue  a  war- 
rant, and  do  not  state  to  whom  it  shall  be  directed,  it  must  be  directed 
to  the  constable  and  not  the  sheriff.6 


(1)  1  Bl.  Com.  365.  (2)  Ibid.  (3)  Lambard. 

(4)  1  Bl.  Com.  356.  (6)  1  Salk.  381.  (6)  1  Chit.  Crim.  L. 


CHAP.  1.]  ELECTION   OP    CONSTABLE.  369 

Constables,  by  the  laws  of  this  State,  are  chosen  by  the  people.  In 
counties  not  adopting  township  organization,  they  are  chosen  by  the 
electors  of  each  precinct.  In  counties  adopting  township  organization, 
they  are  chosen  by  the  electors  of  each  town,  and  when  elected  and 
qualified,  they  have  jurisdiction  in  their  respective  counties.1 


II.    OF    THE    ELECTION    OF    CONSTABLE. 

1.  In  Counties  not  adopting  Toivnship  Organization. 

In  counties  not  adopting  township  organization,  two  constables  are 
allowed  to  be  elected  in  each  election  precinct  in  each  county,  except 
that  precinct  in  which  the  county  seat  is  located,  in  which  three  con- 
stables are  allowed.2  And  this  number  may  be  increased  to  five, 
whenever  the  county  court  may  deem  it  necessary.8 

By  section  16  of  the  act  to  establish  county  courts,  and  provide  for 
the  election  of  justices  of  the  peace  and  constables,  and  for  other 
purposes,  approved  February  12,  1849,4  it  is  provided,  that  the 
election  of  constables  shall  be  on  Tuesday  after  the  first  Monday  in 
November ;  the  first  election  being  in  the  year  eighteen  hundred  and 
forty-nine,  and  to  take  place  on  the  Tuesday  after  the  first  Monday  in 
November,  every  four  years  forever  thereafter.5 

Vacancies  occurring  in  the  office  of  constable  in  counties  not  adopting 
township  organization,  are  to  be  filled  in  the  same  manner  as  in  cases 
of  justices  of  the  peace  in  such  counties.6  Whenever  there  shall  be 
no  constable  in  any  precinct,  any  justice  of  the  peace  in  such  precinct 
may  appoint  one,  who  will  be  qualified  as  in  other  cases,  and  hold  his 
office  until  superseded  by  an  election.7 

2.  In  Counties  adopting  Township  Organization. 

The  act  to  provide  for  township  organization,  approved  February 
17,  1851,  Art.  3,  Sec.  2,8  provides  for  the  election  of  two  constables 
at  the  annual  town  meeting  in  each  town,  once  in  four  years,  except 
to  fill  vacancies,  and  that  such  constables  shall  be  successors  to  precinct 
constables.  By  the  act  above  mentioned,9  constables  hold  their  offices 

(1)  Rev.  Stat.  314,  Sec.  7.  (2)  Rev.  Stat.  313,  Sec.  2.  (3)  Id.  314,  Sec.  5. 

(4)  Sess.  Laws,  1849,  p.  62.  (5)  See  ante,  page  20.  (6)  See  ante,  page  21 . 

(7)  Rev.  Stat.  315,  Sec.  16.  (8)  See  Sess.  Laws,  1851.  (9)  Art.  6,  Sec.  15. 

23 


370  QUALIFICATION    OF    CONSTABLE.  [PART  4, 

for  four  years,  or  until  others  are  chosen  and  qualified.  The  act 
amendatory  to  the  act  above  mentioned,  approved  February  27.  1854, 
Sec.  15, 1  provides,  that  in  all  towns  having  a  population  of  more  than 
two  thousand  inhabitants,  it  shall  be  lawful  for  the  qualified  voters 
thereof,  to  elect  one  constable  for  each  and  every  thousand  of  its 
inhabitants,  until  the  population  shall  reach  five  thousand  ;  after  which 
the  number  is  not  to  be  increased ;  which  constables  are  to  be  elected 
in  the  same  manner,  and  are  to  hold  their  offices  for  the  same  term  of 
time  as  other  constables.2 

When  a  vacancy  occurs  in  the  office  of  constable,  it  is  lawful  in 
certain  cases,  for  the  justices  of  the  peace,  together  with  the  supervisor 
and  town  clerk  of  the  town,  by  warrant  under  their  hands  and  seals, 
to  appoint  some  person  to  fill  such  vacancy,  and  the  person  so  appointed 
will  hold  his  office  until  another  shall  be  chosen  or  appointed  in  his 
stead.3 


III.    OF    QUALIFICATION. 

1.   In  Counties  not*adopting  Township  Organization. 

Constables  before  entering  upon  the  duties  of  their  respective  offices, 
are  required  to  be  sworn,  faithfully  to  perform  the  duties  of  their 
respective  offices  according  to  law,  and  to  the  best  of  their  under- 
standing.4 

Rev.  Stat.  315,  Sec.  11.  "  Every  constable,  before  he  shall  enter 
upon  the  duties  of  his  office,  shall  execute  and  deliver  to  the  clerk  of 
the  county  commissioners'  court5  of  the  proper  county,  a  bond  to  be 
approved  by  said  clerk,  with  one  or  more  good  and  sufficient  freeholders 
as  his  securities,  in  the  sum  of  one  thousand  dollars,  conditioned  that 
he  will  faithfully  discharge  the  duties  of  his  office  of  constable  ;  and 
that  he  will  justly  and  fairly  account  for,  and  pay  over  all  moneys  that 
may  come  to  his  hands,  under  any  process  or  otherwise,  by  virtue  of 
his  office.  The  said  bond  shall  be  made  payable  to  the  county  com- 
missioners of  the  county  in  which  such  constable  shall  be  appointed, 
and  their  successors,  for  the  use  of  the  people  of  the  State  of  Illinofe, 
and  shall  be  held  for  the  security  and  benefit  of  all  suitors  and  other 
persons  who  may  be  interested  in,  or  become  injured  by,  the  official 
conduct  of  such  constable." 

(1)  Sess.  Laws,  Special  Sess.  1854.         (2)  See  ante,  p.  21,  22.         (3)  Sess.  Laws.  1851,  p.  43. 
(4)  Rev.  Stat.  314,  Sec.  9.  (5)  Now  County  Court. 


ClIAP.   1.]  QUALIFICATION    OF    CONSTABLE.  371 

The  county  commissioners  being  now  superseded  by  the  county 
court,1  the  bond  of  the  constable  should  perhaps  be  made  payable  to 
the  county  court,  as  has  already  been  suggested  in  relation  to  justices 
of  the  peace  f  yet  perhaps  it  would  be  more  proper,  in  the  absence  of 
any  express  statute  on  the  subject,  that  it  should  be  made  payable  to 
the  people  of  the  State  of  Illinois. 

It  has  been  held  in  New  York  that  the  bond  of  a  constable,  in  the 
absence  of  any  statutory  direction,  should  properly  be  made  to  the 
people  of  the  State,8  upon  which  bond  an  action  might  be  maintained 
in  the  name  of  the  people  for  the  use  of  the  party  aggrieved,  and  that 
covenant  might  be  maintained  by  the  party  aggrieved  in  his  own  name 
upon  the  condition  of  such  bond.4 

Form  of  Constable's  official  Bond. 

Know  all  men  by  these  presents,  That  we,  A.  B.,  as  principal,  and 
C.  D.  and  E.  F.  as  sureties,  are  held  and  firmly  bound  unto  the  people 
of  the  State  of  Illinois,  in  the  sum  of  one  thousand  dollars,  for  the  pay- 
ment of  which  sum  well  and  truly  to  be  made,  we  bind  ourselves,  our 
heirs,  executors,  and  administrators,  and  each  of  them,  firmly  by  these 
presents. 

Sealed  with  our  seals,  and  dated  this  -  day  of  -  ,  18  —  . 

Whereas  at  an  election  lately  held  in  -  precinct,  in  the  county 
aforesaid,  the  above  bounden  A.  B.  was  duly  elected  a  constable  for 
said  county  : 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 
above  bounden  A.  B.  shall  faithfully  discharge  the  duties  of  his  said 
office  of  constable,  and  shall  justly  and  fairly  account  for  and  pay  over 
all  moneys  that  may  come  to  his  hands  under  any  process  or  otherwise 
by  virtue  of  his  said  office,  then  the  above  obligation  to  be  void,  other- 
wise to  remain  in  full  force  and  effect.  A.  B.  [SEAL.] 

C.  D.     [SEAL.] 
E.  F.     [SEAL.] 

Form  of  Constable's  Oath  of  Office. 
STATE  OF  ILLINOIS, 


COUNTY,      i 


I,  A.  B.,  being  elected  a  constable  in  and  for  the  county  of 

in  the  State  of  Illinois,  do  solemnly  swear  that,  I  will  support  the  Con- 

(1)  See  Sess.  Laws,  1849,  Sec.  15.  (2)  See  ante,  p.  22. 

(3)  2  Wend.  281 ;  5  Id.  191—197 ;  20  Johns.  74.        (4)  5  Wend.  191 ;  4  Id.  414 ;  9  Id.  233. 


372  QUALIFICATION    OF    CONSTABLE.  [PART  4, 

stitution  of  the  United  States,  and  of  the  State  of  Illinois,  and  that  I 
will  faithfully  perform  the  duties  of  my  said  office,  according  to  law  and 
to  the  best  of  my  understanding.     (Here  add  the  dueling  clause,  as  in 
iltToafh  of  Justice  of  the  Peace,  ante,  p.  23.) 
Subscribed  and  sworn  to  before  me,  this  ^  A.  B. 

day  of ,  18—. 

CHAS.  B.  FARWELL, 
Clerk  of  the  County  Court. 

Constables,  as  well  as  justices,  are  required,  in  addition  to  oaths  to 
support  the  Constitution  of  the  United  States  and  of  this  State,  and  an 
oath  for  the  faithful  and  prompt  discharge  of  the  duties  of  their  respec- 
tive offices,  to  take  the  oath  prescribed  in  the  twenty-sixth  section  of 
the  thirteenth  article  of  the  constitution  of  the  State,  in  relation  to  du- 
eling,1 which  applies  equally  to  counties  adopting  township  organization. 

The  oath  of  office  of  constable  is  required  to  be  certified  by  the 
county  clerk,  upon  the  certificate  of  election  of  such  constable.  The 
same  hints  already  given,2  in  relation  to  justices  of  the  peace,  in  steps 
for  qualification,  will  apply  with  equal  force  to  that  of  constables. 

Rev.  Stat.  331,  Sec.  114.  "  All  bonds  given  by  justices  of  the  peace 
and  constables  shall  remain  in  force  five  years  after  the  expiration  of  their 
respective  terms  of  office,  and  when  such  bonds  are  renewed,  or  new 
bonds  are  given,  such  renewal  or  giving  of  a  new  bond  shall  not  satisfy 
or  vacate  any  such  previous  bond,  but  each  bond  shall  stand  good  in 
relation  to  all  matters  and  things  done,  or  omitted  to  be  done,  within 
the  term  of  office  for  which  such  bond  shall  have  been  given :  Pro- 
vided, That  where  by  law,  any  justice  or  constable  shall  be  authorized 
or  required  to  complete  any  business,  or  perform  any  duties  grow- 
ing out  of  business  commenced,  and  in  their  hands  previous  to  going 
out  of  office,  the  bond  shall  apply  to  such  cases  until  such  business  is 
concluded  by  such  justice  or  constable." 

Resignations  of  the  office  of  constable,  in  counties  not  adopting 
township  organization,  must  be  made  to  the  clerk  of  the  county  court.8 

2.  In  Counties  adopting  Township  Organization. 

In  counties  adopting  township  organization,  every  person  chosen  to 
the  office  of  constable,  is  required,  before  he  enters  upon  the  duties  of 

(1)  Sess.  Laws,  1849,  page  66,  8ec.  20.         (2)  Ante,  p.  24.         (3)  Rev.  Stat.  315,  Sec.  16. 


ClIAP.  1.]  QUALIFICATION    OF    CONSTABLE.  373 

his  office,  and  within  eight  days  after  he  shall  be  notified  of  his  election 
or  appointment,  to  execute,  in  the  presence  of  the  supervisor  or  town 
clerk  of  the  town,  with  one  or  more  sureties,  to  be  approved  of  by  such 
supervisor  or  town  clerk,  an  instrument  in  writing,  in  which  suclTcon- 
stable  and  his  sureties  shall  jointly  and  severally  agree  to  pay  to  each 
and  every  person  who  may  be  entitled  thereto,  all  such  sums  of  money 
as  the  said  constable  may  become  liable  to  pay,  on  account  of  any 
executions  which  shall  be  delivered  to  him  for  collection,  by  virtue  of 
his  office.1 

The  oath  prescribed  by  law,  is  that  prescribed  by  Art.  Ill,  Sec.  30, 
and  Art.  XIII,  Sec.  26,  of  the  constitution ;  Rev.  Stat,  314,  Sec.  9, 
and  Sec.  20  of  the  Act  to  establish  county  courts,  &c.2 

The  law  is  silent  as  to  what  officer  shall  administer  the  oath  of  office 
to  constables  elect,  in  counties  adopting  township  organization.  The 
revised  statute,  by  which  it  would  be  the  duty  of  the  county  clerk,  to 
administer  the  oath,8  has  not  been  changed  by  the  act  to  provide  for 
township  organization ;  and  it  is,  therefore,  doubtful  whether  the  oath 
of  office  of  constable  in  this  case,  should  not  still  be  administered  by  the 
clerk  of  the  county  court,  the  same  as  in  case  of  justices  of  the  peace. 

By  the  Rev.  Stat.,  chapter  76,  title  "Oaths  and  Affirmations ," 
Sec.  3,  all  courts  in  the  State,  the  judges,  justices,  notaries  public  and 
clerks  of  said  courts,  within  their  respective  districts,  circuits  or  coun- 
ties, and  the  justices  of  the  peace  within  their  counties  respectively, 
have  power  to  administer  all  oaths  of  office,  and  other  oaths  required 
to  be  taken  by  any  person  before  entering  upon  the  discharge  of  the 
duties  of  any  office,  appointment,  place  or  business.  In  view  of  this 
provision  of  the  law,  it  is  contended  also,  that  it  will  be  proper  for 
justices  of  the  peace  of  the  several  towns,  to  administer  the  oath  of 
office  to  constables,  notwithstanding  the  former  provision  of  the  statute, 
placing  this  duty  upon  the  clerk  of  the  county  court,  and  which  practice 
has  very  generally  prevailed.  The  form  of  the  oath  of  office  in  this 
case,  will  be  the  same  as  that  heretofore  given.4 

As  to  the  instrument  to  be  executed  by  the  constable  and  sureties 
for  the  faithful  discharge  of  his  duties,  it  may  be  in  the  form  of  a  penal 
bond,  to  the  people  of  the  State  for  the  use  of  the  party  injured.8 
The  approved  form,  however,  is  a  simple  agreement,  without  any 
penalty,  to  pay  any  person  who  may  be  aggrieved  by  the  constable's 
neglect  of  duty.6 

(1)  Sess.  Laws,  1851,  page  42,  Sec.  8.  (2)  Id.  1849.  page  66,  Sec.  20. 

(3)  See  Rev.  Stat.  315,  Sec.  14.  (4)  Ante,  page  371. 

(5)  20  Johns.  74  ;  2  Wend.  281.  (6)  6  Wend.  191—197. 


374  QUALIFICATION    OF    CONSTABLE.  [PART  4, 

Our  law  upon  the  subject  of  qualification  of  constables  in  counties 
adopting  township  organization,  is  a  literal  re-enactment  of  the  statute  of 
New  York,  under  which  it  was  held,  that  the  following  form  of  instru- 
ment to  be  executed  by  the  constable,  was  a  substantial  compliance 
with  the  statute,  and  was  held  to  be  good.1 

Form  of  Instrument  to  be  executed  by  a  Constable  and  his  Sureties  for 
performance  of  duties. 

A.  B.  chosen  (or  "appointed")  constable  of  the  town  of , 

in   the  county  of  ,  and  C.  D.  and  E.  F.  as  sureties,  do  hereby 

jointly  and  severally  agree  to  pay  to  each  and  every  person  who  may 
be  entitled  thereto,  all  such  sums  of  money  as  the  said  constable  may 
become  liable  to  pay  on  account  of  any  execution  which  shall  be 
delivered  to  him  for  collection,  by  virtue  of  his  said  office. 

Dated  the day  of ,  18 — . 

Executed  in  the  presence  of  }  A.  B.  [SEAL.] 

JOHN  DOE,  V  C.  D.  [SEAL.] 

Supervisor  of  the  town  of .  J  E.  F.   [SEAL.] 

The  supervisor  or  town  clerk,  will,  if  approved,  endorse  such  appro- 
val on  such  instrument,  which  will  be  his  approval  of  the  sureties  there- 
in named,  and  will  then  cause  the  same  to  be  filed  in  the  office  of  the 
town  clerk,  and  a  copy  of  such  instrument,  certified  by  the  town  clerk, 
will  be  presumptive  evidence  in  all  courts  of  the  execution  thereof  by 
such  constable  and  his  sureties.2 

Form  of  Supervisor's  (or  town  clerk's)   approval,   to  be  indorsed  on 
Constable's  instrument  of  security.- 

I  hereby  approve  the  within  instrument  and  the   sureties   therein 

named,  this day  of ,  18 — . 

JOHN  DOE, 
Supervisor  of  the  town  of 

The  omission  of  the  constable  to  file  his  instrument  of  security  within 
the  eight  days,  as  prescribed  by  law,  does  not  affect  its  validity,  ;ts  to 
persons  injured  ;  in  this  respect  the  statute  is  merely  directory.3  Nor 
can  the  constable,  or  his  sureties,  object  that  the  instrument  is  not  un- 

(1)  2  Wend.  615.  (2)  Sess.  Laws,  1851,  page  43,  Sec.  9.  (3)  2  Wend.  615. 


CHAP.  1.]  SPECIAL  CONSTABLES.  375 

der  seal ;  nor  in  the  form  prescribed  by  the  statute ;  nor  that  the  sure- 
ties were  not  approved  of  by  the  town  clerk  or  supervisor.1 

All  actions  against  a  constable  or  his  sureties  upon  his  instrument  of 
security,  must  be  prosecuted  within  two  years  after  the  expiration  of  the 
term  of  his  office  f  this  is  only,  however,  when  the  suit  is  brought 
upon  the  instrument.  There  can  be  no  doubt  that  the  constable  himself 
would  be  held  liable  in  an  action  for  money  had  and  received,  brought 
by  the  party  on  whose  execution  he  had  collected  money,  if  the  suit  is 
brought  before  the  claim  become  barred  by  the  statute  of  limitations.3 

When  the  instrument  of  security  is  in  the  form  of  a  bond  to  the  peo- 
ple, an  action  of  debt  in  the  name  of  the  people,  but  not  in  the  name 
of  the  party  aggrieved,  may  be  maintained  by  any  person  to  whom  the 
constable  has  become  liable  ;  although  covenant  may  be  brought  by 
such  person  on  the  condition  of  the  bond,  in  his  own  name.4 

Resignations  of  the  office  of  constable,  in  counties  adopting  township 
organization,  should  be  made  to  the  justices  of  the  peace  of  the  town, 
who  are  authorized  to  accept  the  same  for  sufficient  cause  shown  to  them  ; 
and  justices  accepting  any  such  resignation,  should  forthwith  give  notice 
thereof  to  the  town  clerk  of  the  town.5 


IV.      SPECIAL    CONSTABLES,   WHEN    AND    HOW    APPOINTED. 

Rev.  Stat.  327,  Sec  86.  "  Any  justice  of  the  peace  may  appoint  a 
suitable  person  to  act  as  constable  in  a  criminal  or  other  case,  where 
there  is  a  probability  that  a  person  charged  with  any  indictable  offense, 
will  escape,  or  that  goods  and  chattels  will  be  removed  before  applica- 
tion can  be  made  to  a  qualified  constable ;  and  the  person  so  appointed 
shall  act  as  constable  in  that  particular  case,  and  no  other ;  and  any 
temporary  appointment  so  made,  as  aforesaid,  shall  be  made  by  a  writ- 
ten indorsement,  under  the  seal  of  the  justice  deputing,  on  the  back  of 
the  process,  which  the  person  receiving  the  same  shall  be  deputed  to 
execute." 

The  statute  requires  that  the  appointment  of  a  special  constable  should 
be  made  by  a  written  indorsement  on  the  back  of  the  process,  under 

(1)  12  Wend.  306;  14  Johns.  401.  (2)  Seas.  Laws,  1851,  p.  43,  Sec.  10. 

(3)  Cowen's  Tr.  3d.  ed.  561;  4th  ed.  Sec.  1641. 

(4)  5  Wend.  191 ;  4  Id.  414 ;  9  Id.  233 ;  see  also,  2  Id.  281. 

(5)  Sess.  Laws,  1851,  p.  44. 


376  SPECIAL    CONSTABLES.  [PART  4, 

the  seal  of  the  justice.  An  appointment  upon  a  separate  piece  of  paper, 
is  not  a  compliance  with  the  statute.1 

But  two  cases  are  specified  by  the  statute  in  which  a  justice  is  author- 
ized to  appoint  a  constable  pro  tern.  The  one  is  to  execute  criminal 
process  where  the  accused  is  likely  to  escape  ;  and  the  other  is  to  exe- 
cute civil  process,  where  goods  and  chattels  are  about  to  be  removed, 
before  application  can  be  made  to  a  qualified  constable.2 

The  indorsement  upon  the  process,  therefore,  should  always  show  the 
reason  why  the  appointment  is  made.  The  form  given  in  cases  of  at- 
tachments,8 may  be  used  for  all  occasions,  by  being  varied  to  suit  the 
case. 

Judges  of  elections  are  authorized  and  empowered  to  appoint  one  or 
more  special  constables,  to  assist  in  preserving  order  during  elections, 
in  case  no  constable  shall  be  in  attendance  at  such  election.4 

(1)  1  Scorn.  489.     (2)  1  Id.  489 ;  Breese,  146.     (3)  Ante,  p.  288.     (4)  ROY.  Stat.  218,  Sec.  21. 


CHAP.  2.]  SERVICE  AND  RETURN  OF  SUMMONS.  377 


CHAPTER  II. 

POWERS  AND  DUTIES  OF  CONSTABLES  IN  CIVIL  PROCEED- 
INGS. 

I.     OF  THE  SERVICE  AND  RETURN  OF  PROCESS,  AND  HEREIN 

1.  Of  the  Summons. 

2.  Of  the   Warrant. 

3.  Of  the   Venire. 

4.  Of  the    Writ  of  Attachment. 

5.  Of  the  Execution. 

1.  Service  and  Return  of  Summons. 

Constables  are  the  ministerial  officers  of  courts  held  by  justices  of 
the  peace,  and  are  required,  as  we  have  already  seen,1  to  execute  all 
process  emanating  therefrom,  unless  the  statute  shall  otherwise  direct. 

The  most  usual  process  for  the  commencement  of  suit,  is  that  of  a 
summons,  which,  upon  being  placed  in  the  hands  of  the  constable,  must 
be  served  at  least  three  days  before  the  time  of  trial  mentioned  therein, 
by  reading  the  same  to  the  defendant  or  defendants.2 

Form  of  Constable's  Return  on  Summons. 

Personally  served  the  within,  by  reading  the  same  to  the  within 
named  defendant.  Sept.  18th,  1855. 

Fees.     Mileage,  10  miles, 50  cents. 

Service, 25     " 

75  cents. 
PARNELL  MUNSON,  Constable. 

1)  Ante,  p.  368.]  (2)  Rev.  Stat.  317,  Sec.  21.    See  ante,  p.  41. 


378  SERVICE    AND    RETURN    OF    WARRANT.  [PART  4, 

* 

Form  of  Constable's  Return  when  Summons  is  against  two  or  more, 
and  some  are  not  found. 

Personally  served  the  within  by  reading  the  same  to  the  within  named 

C.  D.,  the day  of ,  18 — .    The  within  named  E.  F.  not  found 

in  my  county.     Fees,  &c.  Gr.  H.,  Constable. 

Form  of  Constable 's  Return  when  defendant  is  not  found. 

The  within  named  defendant  not  found  in  my  county. 

G.  H.,  Constable. 

Kev.  Stat.  327,  Sec.  85.  "When  any  defendant  shall  evade  the 
service  of  process,  and  not  listen  to  the  same,  or  secrete  himself,  then 
the  officer  shall  serve  the  same  by  leaving  a  copy  at  his  place  of  resi- 
dence, with  some  white  person  of  the  age  of  ten  years  or  upwards ;  and 
in  all  such  cases  the  constable  shall  make  a  special  return,  when  and 
how  served,  and  the  circumstances  attending  the  same;  and  if  the  jus- 
tice shall  be  satisfied  that  the  defendant  evaded  the  service  by  reading, 
and  that  the  party  is  sufficiently  notified  and  summoned,  he  shall  pro- 
ceed to  hear  and  determine  the  case." 

Form  of  Constable's  Return  on  Summons,  when  served  by  copy. 

Served  the  within,  by  leaving  a  copy  thereof  at  the  place  of  resi- 
dence of  the  within  named  defendant,  with  a  white  person,  upwards  of 
the  age  of  ten  years,  the  defendant  having  evaded  the  service  of  the 
same.  September  18th,  1855. 

Fees,  &c.  NORMAN  BROWN,  Constable. 

2.    Of  the  Service  and  Return  of  Warrant. 

The  rules  which  govern  the  service  of  this  process,  have  been  already 
noticed  to  some  extent  in  PART  FIRST  hereof,1  but  it  may  be  proper 
here  to  add,  that  for  the  service  of  all  civil  process,  every  man's 
dwelling  house  is  inviolable,  or,  as  the  early  writers  express  it,  is  his 
castle,  and  an  officer  has  no  right  to  break  its  outer  door,  to  open  it  if 
shut,  to  lift  a  latch  in  order  to  enter  it,  or  to  enter  against  the  owner's 
command,  in  order  to  arrest  him,  or  to  levy  upon  his  property  :  and 
it  makes  no  difference  whether  the  owner  be  at  home  or  absent.  This 
privilege  is  intended  for  the  protection  of  himself  and  his  family,  and 

(1)  See  ante,  pages  48,  49. 


CHAP.  2.]  SERVICE  AND  RETURN  OF  VENIRE.  379 

is  therefore  confined  to  the  dwelling  house  occupied  by  them,  and  does 
not  extend  to  a  barn,  store,  shop  or  warehouse.1  And  when  the 
constable  has  once  made  the  arrest,  if  the  defendant  escape  without  the 
constable's  consent,  his  own  or  any  other  dwelling  house  forms  no 
protection  against  a  recaption  ;  but  the  officer  may  break  outer  doors 
to  seize  his  body,  without  a  previous  demand  and  refusal,  where  the 
pursuit  is  fresh ;  or  may  retake  iim  on  any  day,  or  at  any  place,  or 
on  any  business  which  would  otherwise  operate  as  a  privilege  from 
arrest ;  for  the  party  is  still  considered  in  custody,  and  it  is  not  an 
original  taking.2  As  to  persons  privileged  from  arrest,  see  ante,  page  49. 
When  the  defendant  is  arrested  on  a  warrant,  he  has  the  right  to  release 
his  body,  by  giving  special  bail  to  the  constable.8 

Form  of  Special  Bail  to  be  indorsed  on  Warrant. 

I,  G.  F.,  acknowledge  myself  special  bail  for  the  within  named  C.  D. 
Witness  my  hand,  this day  of ,  18 — .  G.  F. 

Form  of  Constable's  Return  on  Warrant. 

Executed  the  within,  by  arresting  the  within  named  defendant,  and 
he  is  now  in  custody.  September  24,  1855. 

Fees,  &c.  G.  H.,  Constable. 

In  case  of  several  defendants,  when  part  only  are  arrested,  or  in  case 
the  defendant  is  not  found,  the  return  in  this  respect  will  be  the  same 
as  in  case  of  summons. 

3.    Of  the  Service  and  Return  of  Venire. 

The  constable  on  receiving  a  venire  or  jury^svarrant,  will  summon 
the  number  of  persons  therein  required,  who  ajp  not  exempt  from  such 
service,  or  rendered  incompetent.4  He  will  then  make  the  following 
return  upon  the  venire. 

Form  of  Return  on  Venire. 

Executed  the  within  by  summoning  the  following  panel  of  jurors. 
(Here  give  the  names  of  the  persons  so  summoned.)  September  25, 
1855.  Fees,  &c.  J.  K.,  Constable. 

(1)  1  Hill,  336;  16  Johns.  287;  13  Mass.  520.  (2)  10  Wend.  300;  2  Ld.  Raym.  1028. 

(3)  Rev.  Stat.  317,  Sec.  22;  see  ante,  page  49.  (4)  See  ante,  page  98.  , 


380  SERVICE  AND  RETURN  OF  WRITS  OF  ATTACHMENT.      [PART  4, 

When  any  juror  shall  be  discharged  by  the  justice  for  any  cause, 
or  shall  fail  to  attend,  it  becomes  the  duty  of  the  constable,  on  direction 
of  the  justice,  to  complete  the  panel  at  once  from  among  the  bystanders, 
or  elsewhere  in  his  bailiwick,  which  summons  will  be  verbal.1  The 
names  of  the  persons  so  summoned,  need  not  be  indorsed  on  the  jury 
warrant,  but  the  justice  should  note  the  facts  upon  his  docket,  that  the 
transaction  may  there  regularly  appear. 

4.    Of  the  Service  and  Return  of  Writs  of  Attachment. 

The  constable,  on  receiving  a  writ  of  attachment,  must  proceed  to 
levy  the  same  without  delay  upon  the  personal  property  of  the  defend- 
ant. He  will  also  read  the  writ  to  the  defendant,  if  found  in  the 
county.2  In  case  the  constable  shall  be  unable  to  find  property  of  the 
defendant  sufficient  to  satisfy  the  attachment,  he  will  notify  all  persons 
within  his  county,  whom  the  creditor  shall  designate,  as  garnishees, 
requiring  them  to  appear  on  the  return  day  of  said  writ,  and  answer 
upon  oath  as  to  their  indebtedness,  &c.,  to  the  defendant.8 

Form  of  Return  on  Writ  of  Attachment. 

Executed  the  within  writ,  by  levying  upon  the  following  personal 
property :  (here  describe  the  property, )  which  being  insufficient  to 
satisfy  said  writ,  I  have  notified  the  following  persons,  designated  by 
the  plaintiff,  to  appear  as  garnishees.  (Here  give  the  names.^)  The 
defendant  not  found  in  my  county.  September  26,  1855. 

Fees,  &c.  E.  F.,  Constable. 

Form  of  Return  when  no  property  is  found. 

No  property  of  the  within  named  defendant  found  in  my  county. 
T  have  notified  C.  and  D.,  persons  designated  by  the  plaintiff,  to  appear 
as  garnishees.  The  defendant  not  found  in  my  county.  September 
26th,  1855. 

E.  F.  Constable. 

When  the  defendant  is  not  served,  and  no  appearance  is  entered  for 
him,  the  cause  is  to  be  continued  by  the  justice  ten  days,  and  who  will 
immediately  prepare  a  notice  to  the  defendant  in  the  suit,  and  deliver 
the  same  to  the  constable,  whose  duty  it  is  to  post  three  copies  thereof  at 

(1)  Rev.  Stat.  322.  Sec.  49.  (2)  Rev.  Stat.  69,  Sec.  5 .  (3)  Rev.  Stat.  60,  Sec.  9. 


CHAP.  2.]          SERVICE  AND  RETURN  OF  EXECUTION.  381 

three  public  places  in  the  neighborhood  of  the  justice,  at  least  eight 
days  before  the  day  of  trial.1  The  constable  will  post  copies  of  the 
notice  delivered  him  by  the  justice,  and  return  the  original  with  an  in- 
dorsement thereon,  stating  the  time  when,  and  the  place  where,  Jie 
posted  copies.2  -I" 

Form  of  Indorsement  of  Constable   on  Attachment  Notice. 

I  have  posted  three  copies  of  the  within  notice  as  follows  :  (state 
the  places  where  the  notices  were  posted,)  which  were  posted  on  the 
day  of  -  — ,  18—.  E.  F.,  Constable. 

5.      Of  the  Service  and  Return  of  Execution. 

Rev.  Stat.  326,  Sec.  79.  "  Every  constable  to  whom  an  execution 
shall  be  delivered,  shall  indorse  on  the  back  of  the  same,  an  exact 
memorandum  of  the  day  and  hour  when  the  same  shall  have  come  to 
his  hands,  and  shall  immediately  proceed  to  levy  the  same ;  indorsing 
also  on  the  back  of  the  execution,  the  date  of  such  levy,  and  making 
an  exact  inventory  of  the  property  on  which  the  same  shall  have  been 
levied,  and  shall  appoint  a  day  and  hour  for  the  sale  of  said  property, 
giving  ten  days'  previous  notice  of  such  sale,  by  advertisement  in 
writing,  to  be  posted  up  at  three  of  the  most  public  places  in  the 
county ;  and  on  the  day  so  appointed,  the  said  constable  shall  sell  the 
property  so  levied  on,  or  so  much  thereof  as  may  be  necessary  to  pay 
the  debt,  interest  and  costs,  to  the  highest  bidder." 

Form  of  Constable's  Indorsement  oh  receiving  Execution. 

Received  this  execution  this  day  of ,  18 — ,  at  — 

o'clock,  —  M.  E.  F.,  Constable. 

The  personal  property  of  the  defendant  in  a  judgment  before  a  justice 
of  the  peace,  is  bound  for  the  payment  of  such  judgment  from  the  de- 
livery of  the  execution  issued  thereon  to  the  constable.8 

Any  constable  has  authority  to  remove  property  levied  on  by  him, 
when  it  shall  be  necessary  for  the  safe  keeping  of  the  same.  But  if 
the  defendant  shall  desire  to  retain  the  property  so  levied  on,  until  the 
day  of  sale,  it  will  be  lawful  for  the  constable  to  allow  the  defendant  so 
to  keep  the  same,  if  said  defendant  shall  give  bond  to  the  constable  in 

(1)  Rev.  Stat.  60,  Sec.  7;  see  ante,  p  275,  title,  "  Attachments,"  &c.  (2)  Ibid. 

(3)  Rev.  Stat.  326,  Sec.  78. 


382  SERVICE    AND    RETURN    OF    EXECUTION.  [PART    4, 

double  the  amount  of  the  execution,  with  good  security,  conditioned 
for  the  delivery  of  said  property  to  such  constable,  at  the  time  and 
place  of  sale  to  be  named  in  said  bond ;  and  if  the  said  property  shall 
not  be  delivered  as  aforesaid,  at  the  time  and  place  of  sale,  the  constable 
having  the  execution  may  proceed  to  levy  the  same,  upon  the  same  or 
any  other  property  of  the  defendant,  or  upon  the  property  of  the  secu- 
rity in  such  bond,  and  shall  sell  the  same,  giving  two  days'  public  notice 
of  such  sale  by  advertisement,  to  be  posted  in  one  public  place.1 

Any  constable  to  whom  an  execution  shall  have  been  delivered,  and 
whose  term  of  office  shall  expire  before  the  expiration  of  the  time 
within  which  the  return  of  such  execution  is  required  by  law,  is 
authorized  to  proceed  in  all  matters  relating  to  said  execution ;  and 
in  the  same  manner  to  collect  the  same,  that  he  might  have  done, 
had  the  term  of  office  of  such  constable  not  expired.2 

Form  of  Indorsement  of  Levy  and  Inventory  of  Property. 

By  virtue  of  the  within,  I  have  this  day  levied  on  the  following 
personal  property  of  the  within  named  defendant :  (here  describe  the 

property  particularly,)  this day  of ,  18 — . 

E.  F.,  Constable. 

^  £  &  Rev.  Stat.  306,  Bee.  32.  "  The  necessary  wearing  apparel  of  every 
person  shall  be  exempt  from  execution,  writ  of  attachment  and  dis- 
tress for  rent. 

"  Sec.  33.  The  following  property,  when  owned  by  any  person 
being  the  head  of  a  family  and  residing  with  the  same,  shall  be 
exempt  from  levy  and  sale  on  any  execution,  writ  of  attachment,  or 
distress  for  rent ;  and  such  articles  of  property  shall  continue  so  ex- 
empt, while  the  family  of  such  person,  or  any  of  them,  are  removing 
from  one  place  of  residence  to  another  in  this  State,  viz :  First, 
necessary  beds,  bedsteads  and  bedding ;  the  necessary  utensils  for 
cooking ;  necessary  household  furniture,  not  exceeding  in  value  fifteen 
dollars ;  one  pair  of  cards,  two  spinning  wheels,  one  weaving  loom 
and  appendage ;  one  stove  and  the  necessary  pipe  therefor,  being  in 
use,  or  put  up  for  ready  use,  in  any  house  occupied  by  such  family. 
Second,  one  milch  cow  and  calf,  two  sheep  for  each  member  of  the 
family,  and  the  fleeces  taken  from  the  same,  or  the  fleeces  of  two 
sheep  for  each  member  of  a  family  which  may  have  been  purchased 

(1)  Rev.  Stat.  326,  Sec.  80.  (2)  Rer.  Stat.  331,  Sec.  113. 


CHAP.  2.]  SERVICE  AND  RETURN  OF  EXECUTION.  388 

by  any  debtor  not  owning  sheep,  and  the  yarn  and  cloth  that  may 
be  manufactured  from  the  same,  and  sixty  dollars'  worth  of  property 
suited  to  his  or  her  condition  or  occupation  in  life,  to  be  selected 
by  the  debtor.  Third,  necessary  provisions  and  fuel  for  the  use  of 
the  family  for  three  months,  and  necessary  food  for  the  stock  here- 
inbefore exempted  from  sale,  or  that  may  be  held  under  the  provisions 
of  this  chapter. 

"  Sec.  34.  Whenever,  in  any  case,  the  head  of  a  family  shall 
die,  desert,  or  cease  to  reside  with  the  same,  the  said  family  shall 
be  entitled  to  and  receive  all  the  benefits  and  privileges  which  are, 
in  this  chapter,  conferred  upon  the  head  of  a  family  residing  with 
the  same." 

If  a  defendant,  after  notice  from  an  officer  having  an  execution 
against  him,  neglect  or  refuse  to  make  a  selection  of  property  allowed 
him  by  statute,  the  officer  may  proceed  to  levy  upon  any  of  his  property, 
not  specifically  exempt  from  execution,  and  sell  the  same,  regardless  of 
any  subsequent  claim  of  such  defendant  to  such  property  as  having 
been  selected  by  him.  But  if  the  defendant  make  his  selection  and 
notify  the  officer  thereof,  and  the  officer  should  then  proceed  to  take  or 
seize  such  property  on  execution,  he  thereby  becomes  a  trespasser. 

If  an  officer  proceed  to  seize  or  take  the  defendant's  property  on 
execution,  without  giving  the  requisite  notice,  the  defendant  may  make 
his  selection  after  the  levy,  of  the  very  property  levied  on,  (if  it  be 
such  in  quality  and  value,  as  before  the  levy  he  might  have  selected,) 
precisely  as  before  the  levy  he  could  have  done.  But  in  such  case,  he 
should,  on  notifying  the  officer,  surrender,  or  offer  to  surrender,  a  suffi- 
cient amount  of  other  property  to  satisfy  the  execution ;  and  if  he  neg- 
lects to  surrender,  or  offer  so  to  do,  the  officer  may  proceed  with  the 
sale,  unless  the  aggregate  of  the  property  levied  on  and  afterwards 
selected,  and  that  still  retained  by  the  defendant  and  not  specifically 
exempt  from  execution,  does  not  exceed  sixty  dollars,  in  which  case  the 
officer  will  be  liable  to  the  penalty  of  the  statute,  if  he  sells  such  prop- 
erty. If,  however,  a  defendant  aliens,  conceals,  or  otherwise  disposes 
of  all  his  property,  except  such  as  he  desires  to  select,  for  the  purpose 
of  delaying  or  hindering  his  creditors,  he  will  not  be  entitled  to  the 
benefit  of  the  statute.1 

Property  which  is  indivisible,  and  of  greater  value  than  sixty  dollars, 
cannot  be  claimed  by  a  judgment  debtor,  as  being  exempt  from  execu- 

(1)  1  Gil.  757,  758. 


384  SERVICE  AND  RETUKN  OF  EXECUTION. 

tion,  and  he  cannot  retain  such  property  by  paying  to  the  constable  the 
excess  of  value  in  money.1 

In  the  sale  of  personal  property  on  execution,  the  property  itself 
must  be  present  or  the  sale  will  be  void.2 

» 

Form  of  Notice  of  Constable's  Sale. 

CONSTABLE'S  SALE. 

Notice  is  hereby  given,  that  by  virtue  of  an  execution  issued  by  E. 

F.,  Esquire,  a  justice  of  the  peace  of county,  in  favor  of  A.  B., 

and  against  the  goods  and  chattels  of  C.  D.,  and  to  me  delivered,  I 
have  levied  on  the  following  described  goods  and  chattels,  to  wit :  (here 
describe  the  property,)  which  I  shall  expose  for  sale •  at  public  vendue, 

at ,  in  said  county,  on  the day  of ,  18—,  at  —  o'clock  — 

M.,  to  the  highest  bidder  therefor. 

Dated  this day  of ,  18—.  G.  H.,  Constable. 

Form  of  Constable's  Return  on  Execution,  in  case  of  levy  and  sale. 

Executed  the  within  by  sale  of  the  property  hereon  indorsed,  the 

proceeds  of  which  amount  to  $ .     My  fees  retained.     Dated,  &c. 

G.  H.,  Constable. 

Whatever  sum  is  made  on  sale,  he  should  pay  over  to  the  justice  on 
return  of  the  execution ;  he  may.  however,  pay  to  the  plaintiff  the 
amount  of  his  judgment,  and  take  his  receipt  therefor.  Should  the  prop- 
erty sell  for  more  than  the  amount  of  the  execution,  the  constable 
should  pay  the  excess  to  the  defendant  in  execution,  and  make  return 
accordingly. 

form  of  Constable's  Return,  when  no  property  is  found. 

No  property  of  the  within  named  C.  D.,  subject  to  levy,  found  in 
my  county. 
Dated,  &c.  G.  H.,  Constable. 

(1)  14  111.  84.  (2)  15  El.  68. 


ClIAP.  3.]  LIABILITY   OF    CONSTABLES   AND   SURETIES.  385 


CHAPTER    III. 

OP  THE  LIABILITY  OF  CONSTABLES  AND  SURETIES. 

Upon  the  failure  of  the  constable  to  pay  over  any  money  by  him 
collected  or  received  as  provided  by  the  statute,  to  any  person  entitled 
to  receive  the  same,  his  or  her  agent,  or  attorney,  such  person  may 
proceed  against  such  justice  or  constable  in  a  summary  way,  either 
before  the  circuit  court  or  some  justice  of  the  peace  of  the  proper 
county,  by  motion,  upon  giving  to  such  constable  five  days'  notice  of  the 
application;  and  recover  the  amount  so  neglected  or  refused  to  be  paid, 
with  twenty  per  cent,  damages  thereon,  for  such  detention,  and  shall 
have  execution  therefor.1 

If  any  constable  shall  neglect  or  fail  to  return  an  execution  within 
ten  days  after  its  proper  return  day,  or  if  the  demand,  debt,  or  claim, 
be  wholly  or  in  part  lost,  or  if  any  special  damage  shall  arise  to  any 
party  by  reason  of  the  neglect  or  refusal  to  act,  or  the  misfeasance  or 
nonfeasance  of  any  constable  in  the  discharge  of  any  official  duty,  the 
party  aggrieved  may  have  his  action  in  the  circuit  court,  or,  when  the 
amount  claimed  does  not  exceed  one  hundred  dollars,  before  any  justice 
of  the  peace  of  the  proper  county,  against  such  constable  and  his  sure- 
ties on  the  official  bond  of  such  constable,  and  shall  recover  thereon  the 
amount  of  said  execution,  with  interest  from  the  date  of  the  judgment 
upon  which  the  original  execution  issued.2 

The  responsibility  of  the  sureties  is  held  to  be  co-extensive  with  that 
of  the  constable,  and  that  they  are  liable  whenever  he  is  liable  to  a 
party  in  whose  favor  an  execution  has  been  delivered  to  him ;  hence  an 
action  lies  upon  the  constable's  bond  or  instrument  of  security,  against 
the  constable  and  his  sureties,  for  the  mere  neglect  to  return  an  execu- 
tion within  the  time  prescribed  by  the  statute  after  the  return  day 
thereof,  and  this  without  showing  any  moneys  collected.8 

(1)  Rev.  Stat.  332,  Sec.  116.  (2)  Id.  Sec.  118.  (3)  io  Wend.  370. 

24 


386  LIABILITY   OF    CONSTABLES   AND    SURETIES.  [PART  4, 

The  remedy  provided  by  the  statute,  does  not  deprive  a  party  of  his 
common  law  remedy.1  Therefore,  where  a  constable  has  collected  the 
money  on  an  execution,  and  neglects  to  pay  it  over  to  the  person  enti- 
tled to  receive  the  same,  or  to  the  justice  who  issued  the  execution,  an 
action  of  assumpsit  for  money  had  and  received,  will  lie  against  the  con- 
stable to  recover  the  amount  collected,  without  any  previous  demand 
being  made.2  So  assumpsit  lies  against  a  constable  for  the  amount  of 
goods  sold  by  him,  though  the  purchaser  to  whom  they  are  delivered 
refuses  to  pay  for  them.8 

Where  a  constable  or  other  officer  neglects  his  duty,  or  abuses  the 
trust  reposed  in  him  by  law,  to  the  injury  or  damage  of  another,  an 
action  on  the  case  lies  against  him  in  the  circuit  court,  at  the  suit  of  the 
party  sustaining  the  injury.4  Thus,  if  a  constable  neglect  to  serve  a 
writ  or  precept  delivered  to  him,  this  action  lies  for  the  injury  suffered 
by  such  neglect  or  refusal.5 

(1)  10  Johns.  390.  (2)  3  Johns.  182;  1  Wend.  534;  16  East,  274. 

(3)  9  Johns.  96.  (4)  1  Scam.  237.  (5)  1  Scam.  200. 


CHAP.  4.]     POWERS  OP  CONSTABLES  IN  CRIMINAL  CASES.  387 


CHAPTER    IV. 

OF  THE  POWERS  AND  DUTIES  OF  CONSTABLES  IN  CRIMINAL 

CASES. 

I.  His  POWERS  GENERALLY. 
II.  OP  ARRESTS. 

I.    HIS    POWERS    GENERALLY. 

Rev.  Stat.  328,  Sec.  88.  "  It  shall  be  the  duty  of  every  constable, 
when  any  felony  or  breach  of  the  peace  shall  be  committed  in  his  pres- 
ence, forthwith  to  apprehend  the  person  committing  the  same,  and 
bring  him  before  some  justice  of  the  peace,  to  be  dealt  with  according 
to  law  ;  to  suppress  all  riots  and  unlawful  assemblies,  and  to  keep  the 
peace,  and  also  to  serve  and  execute  all  warrants,  writs,  precepts,  and 
other  process  to  him  lawfully  directed  ;  and  generally  to  do  and  per- 
form all  things  appertaining  to  the  office  of  constable  within  this  State." 

The  offiee  of  constable  is  either  ministerial  in  obeying  warrants  and 
precepts,  or  is  original  as  a  conservator  of  the  peace,  at  common  law, 
or  by  virtue  of  particular  acts  of  the  legislature.  By  the  original  and 
inherent  power  which  he  possesses,  he  may,  for  treason,  felony,  breach 
of  the  peace,  and  some  misdemeanors  less  than  felony,  committed  in  his 
view,  apprehend  the  supposed  offender,  without  warrant.1  So  if  a  fel- 
ony has  been  committed,  a  constable,  or  any  peace  officer,  may  lawfully 
apprehend  a  supposed  offender,  upon  the  information  of  others,  without 
any  positive  charge,  or  his  own  knowledge  of  the  circumstances  on 
which  the  suspicion  is  founded.2  In  general,  however,  a  constable  can- 
not of  his  own  accord,  and  without  an  express  charge  or  warrant,  justify 

(1)  1  Hale,  587.  (2)  1  East's  P.  C.  301 ;  6  T.  R.  315;  6  Bin.  316. 


388  ARRESTS.  [PART  4, 

the  arrest  of  a  supposed  offender,  upon  suspicion  of  his  guilt,  unless  be 
can  show  that  a  felony  was  committed  by  some  person,  as  well  as  the 
reasonableness  of  the  suspicion  that  the  party  imprisoned  is  guilty.1 

So  a  constable  may,  without  warrant,  apprehend  any  one  for  a  breach 
of  the  peace,  in  his  presence,  and  detain  him  until  he  can  bring  him 
before  a  magistrate.2  A  constable  may,  also,  upon  his  own  view,  law- 
fully interpose  to  prevent  a  breach  of  the  peace,  or  to  quiet  an  affray  ; 
and  if  he  or  any  of  his  assistants,  whether  commanded  or  not,  be  killed, 
it  will  be  murder  in  all  who  take  part  ia  the  assistance,  there  being 
either  express  or  implied  notification  of  the  character  in  which  he  in- 
terposed.8 


II.     OP    ARRESTS. 

An  arrest,  in  criminal  cases,  is  the  apprehending  or  detaining  a  per- 
son, in  order  that  he  may  be  forthcoming  to  answer  to  a  crime  alleged 
against  him,  or  of  which  he  is  suspected  to  be  guilty.4  To  this  arrest 
all  persons  without  distinction  are  liable,  when  accused  of  a  criminal 
offense.  The  exemptions  which  exist  in  civil  cases,  here  cease  to  ope- 
rate. It  is  laid  down  that  no  person  can  be  arrested  unless  charged 
with  such  a  crime  as  will  at  least  justify  holding  him  to  bail  when  taken.5 

To  constitute  an  arrest,  the  party  must  be  actually  touched  by  the 
officer,  or  confined  in  a  room,  or  submit  himself,  by  words  or  actions,  to 
be  in  custody.  The  mere  giving  in  charge,  or  causing  him  voluntarily 
to  appear  before  a  magistrate,  without  the  person  being  taken  into 
actual  custody,  will  not  amount  to  an  arrest ;  for  bare  words  in  this 
respect,  will  not  be  of  any  avail.6  But  no  manual  touching  of  the 
body,  or  actual  force,  is  necessary,  in  order  to  constitute  an  arrest ;  it 
is  sufficient  if  the  party  is  within  the  power  of  the  officer,  and  submits 
to  the  arrest.7  Yet,  it  is  said  to  be  better  in  all  cases  to  touch  the  pris- 
oner's person,  in  order  to  complete  the  arrest ;  taking  care,  at  the  same 
time,  to  use  no  greater  force  or  constraint  than  is  necessary  for  his  safe 
custody ;  the  degree  of  which  will  depend  upon  the  particular  circum- 

(1)  4  Esp.  80;  1  Chit.  Crim.  L.  18.  (2)  Hale's  P.  C.  587;  3  Wend.  384. 

(3)  1  East's  P.  C.  303.  (4)  4  Bl.  Com.  288;  1  Chit.  Crim.  L.  12. 

(5)  4  Bl.  Com.  289. 

(6)  1  Clhit.  Crim.  L.  48;  Davis'  Just.  64;  1  East's  P.  C.  330. 

(7)  Barb.  Crim   L.  531,  and  authorities  cited. 


CHAP.  4.]  ARRESTS.  389 

stances  of  the  case — as,  the  character  of  the  party,  the  nature  of  the 
offense  charged,  the  state  of  the  country,  &C.1 

As  no  time  is  prescribed  in  the  warrant  within  which  it  is  to  be  exe- 
cuted, it  continues  in  force  until  fully  executed,  during  the  term  of  office 
of  the  magistrate  who  granted  it.  And  it  is  said  that  a  person  maybe 
twice  apprehended  under  it,  if  the  purposes  of  justice  have  not  been 
effected.  In  case  of  a  negligent  escape,  the  prisoner  may  be  retaken. 
Otherwise,  however,  if  the  escape  be  voluntary.  It  is  unquestionably  the 
duty  of  the  officer  to  act  according  to  the  exigency  of  his  process,  which 
is,  "forthwith  to  take  the  person  accused,"  if  practicable.  If  the  officer 
should  willfully  neglect  his  duty  in  this  respect,  he  would  doubtless 
render  himself  liable  to  be  punished  criminally.  And  should  any  per- 
son having  charge  of  such  process,  misconduct  himself  by  keeping  it 
back,  to  be  afterwards  made  use  of  for  vexatious  or  improper  purposes, 
he  may  subject  himself  to  an  action  for  a  malicious  prosecution,  at  the 
suit  of  the  party  aggrieved.2 

(1)  1  Nun.  &  Walsh,  203.  (2)  See  Barb.  Crim.  L.  632. 


390  CONSTABLE'S  FEES.  [PART  4, 


CHAPTER   V. 


OF  FEES  AND  COMPENSATIONS  ALLOWED  TO  CONSTABLES 
IN  BOTH  CIVIL  AND  CRIMINAL  CASES. 

CONSTABLE'S  FEES  IN  CRIMINAL  CASES. 

Rev.  Stat.  247,  Sec.  18.  "For  serving  a  warrant  on  each  person 
named  therein,  twenty-five  cents. 

Mileage,  to  be  computed  from  the  office  of  the  justice  who  may  have 
issued  the  same,  to  the  place  of  service,  for  each  mile,  six  and  a  fourth 
cents. 

Serving  each  subpoena,  twelve  and  a  half  cents. 

Mileage  from  the  justice's  office  to  the  residence  of  the  witness,  per 
mile,  six  and  a  fourth  cents. 

Taking  each  person  to  jail  when  committed,  twenty-five  cents. 

Mileage  from  the  justice's  office  to  the  jail,  per  mile,  six  and  a  fourth 
cents. 

For  summoning  jury  in  case  of  assault  and  battery,  fifty  cents. 

But  in  all  cases  where  the  defendant  shall  be  acquitted,  or  otherwise 
discharged,  without  the  payment  of  costs,  the  constable  shall  not  be 
entitled  to  any  fees." 


CONSTABLE  S    FEES    IN    CIVIL    CASES. 

Rev.  Stat.  247,  Sec.  19.     "  Serving  and  returning  each  warrant 
or  summons,  twenty-five  cents. 

Serving  and  returning  each  subpoena,  twelve  and  a  half  cents. 
Serving  and  returning  execution,  fifty  cents. 


CHAP.  5.]  CONSTABLE'S  FEES.  391 

Advertising  property  for  sale,  twenty-five  cents. 

Commission  on  sales  not  exceeding  ten  dollars,  ten  per  centum, 
and  on  all  sales  exceeding  that  sum,  six  per  centum. 

Attending  trial  before  a  justice  in  each  jury  cause,  twenty-five  cents. 

Serving  jury  warrant  in  each  case,  fifty  cents. 

e   Each  day's  attendance  on  the  circuit  court,  when  required  to  be 
paid  out  of  the  county  treasury,  one  dollar. 

Mileage,  when  serving  a  warrant,  summons  or  subpoena,  from  the 
justice's  office  to  the  residence  of  the  defendant  or  witness,  per  mile, 
five  cents. 

For  serving  warrant  on  appraisers  in  cases  of  estrays,  &c.,  twenty- 
five  cents." 


392  APPRENTICES.  PART  5, 


PART    FIFTH. 

COMMON  FORMS  FOR  THE  TRANSACTION  OF  BUSINESS. 

I.  APPRENTICES. 

II.  ARBITRATIONS  AND  AWARDS. 

III.  AGREEMENTS. 

IV.  ASSIGNMENTS. 

V.  BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

VI.  BILLS  OF  SALE. 

VII.  BONDS. 

VIII.  COPARTNERSHIP. 

IX.  CONVEYANCES. 

X.  LEASES. 

XI.  POWERS  OF  ATTORNEY. 

XII.  RELEASES. 

XIII.  WILLS. 

I.    APPRENTICES. 
Indenture  of  Apprenticeship  of  a  Minor,  with  the  consent  of  the  father. 

THIS  INDENTURE,  made  and  entered  into  this  first  day  of  June,  A.  D. 
1855,  by  and  between  A.  B.  a  minor,  of  the  age  of  eighteen  years  on 
the  eighth  day  of  March  last,  of  his  own  free  will  and  accord,  and  by 
and  with  the  consent  of  E.  B.,  his  father,  of  the  county  of  McHenry, 
and  State  of  Illinois,  of  the  one  part,  and  C.  D.  of  Waukegan,  in  the 
county  of  Lake  and  State  aforesaid,  of  the  other  part,  witnesseth  : 

That  the  said  A.  B.  hath  placed  and  bound  himself  apprentice  to  the 
said  C.  D.,  to  learn  the  trade  of  a  Painter,  and  to  dwell  with  the  said 
C.  D.,  continue  with  and  serve  him  for  the  term  of  three  years  from  the 
date  hereof,  until  the  said  A.  B.  shall  have  attained  the  age  of  twenty- 
one  years,  to  wit,  until  the  eighth  day  of  March,  A.  D.  1858.  And  the 
said  A.  B.  on  his  part,  hereby  agrees,  that  during  the  said  term,  he 


PART  5.]  APPRENTICES.  393 

will  well  and  faithfully  serve  the  said  C.  D.,  keep  his  secrets,  and  obey  his 
lawful  commands  ;  that  he  will  do  no  hurt  or  damage  to  his  said  master 
in  his  goods,  estate,  or  otherwise,  nor  willingly  suffer  any  to  be  done 
by  others,  and  whether  prevented  or  not,  shall  forthwith  give  notice 
thereof  to  his  said  master ;  that  he  will  not  inordinately  embezzle  or 
waste  the  goods  of  his  said  master,  nor  lend  them  without  his  consent, 
to  any  person  or  persons  whatsoever ;  that  he  will  not  play  at  cards, 
dice,  or  any  other  unlawful  games ;  that  he  will  not  contract  matrimony 
during  said  term,  or  haunt  or  frequent  groceries,  tippling  houses,  or 
places  of  gaming ;  and  that  he  will  not  at  any  time,  by  day  or  night, 
depart  or  absent  himself  from  the  service  of  his  said  master,  without  his 
leave,  but  will,  in  all  things,  as  a  good  and  faithful  apprentice,  demean 
and  behave  himself  to  his  said  master  during  said  term. 

And  the  said  C.  D.  on  his  part,  hereby  agrees,  in  consideration  of 
one  dollar  to  him  paid,  the  receipt  whereof  is  hereby  acknowledged,  to 
teach  and  instruct  the  said  A.  B.  in  the  art  of  Painting,  or  otherwise 
cause  him  to  be  well  and  sufficiently  instructed  in  said  art ;  that  he  will 
find  and  allow  unto  the  said  A.  B.,  meat,  drink,  washing,  lodging  and 
apparel,  both  linen  and  woolen,  and  all  other  things  necessary  in  sick- 
ness and  in  health,  meet  and  convenient  for  such  an  apprentice,  during 
the  term  aforesaid. 

And  the  said  C.  D.  hereby  further  agrees,  in  pursuance  of  the  stat- 
ute in  such  case  made  and  provided,  that  he  will  teach,  or  cause  to  be 
taught,  the  said  A.  B.,  within  said  term,  to  read  and  write,  and  the 
ground  rules  of  arithmetic;  and  at  the  expiration  of  said  term  of  service, 
will  give  unto  the  said  A.  B.,  a  new  bible,  and  two  new  suits  of  clothes 
suitable  to  his  condition  in  life. 

In  witness  whereof,  the  said  A.  B.  and  the  said  E.  B.,  father  of  the 
said  A.  B.  and  the  said  C.  D.,  have  to  this  and  one  other  indenture  of 
the  same  tenor  and  date,  set  their  hands  and  seals  the  day  and  year 
first  above  written.  •  A.  B.  [SEAL.] 

Signed  and  sealed  in  )  E.  B.     [SEAL.] 

presence  of  C.  D.     [SKAL.] 


Form  of  Indorsement  on  Indenture  of  Apprenticeship,  when  father 
covenants  for  faithful  performance  of  his  son. 

In  consideration  of  the  within  mentioned  agreements  of  the  said  C. 
D.,  I  do  hereby  separately  covenant  and  agree  with  the  said  C.  D., 


4  APPRENTICES.  [PART  5. 

that  the  within  named  A.  B.  shall  well  and  faithfully  perform  and 
observe  all  the  stipulations  on  his  part  within  mentioned,  to  which  true 
and  faithful  performance  and  observance,  I  bind  myself  firmly  by  these 
presents. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the  day 
and  year  first  within  mentioned. 

Signed  and  sealed  in  }  E.  B.     [SEAL.] 

presence  of 

s.  c.    ) 

Form  of  Indenture  binding  poor  child,  by  Overseer  of  Poor, 
under  township  organization. 

THIS  INDENTURE,  made  and  entered  into  on  the  first  day  of  June, 
A.D.  1855,  by  and  between  Francis  H.  Porter,  Overseer  of  the  Poor 
of  the  town  of  Waukegan,  in  the  county  of  Lake,  for  the  year  1855,  of 
the  first  part,  and  Samuel  I.  Bradbury,  of  said  town,  of  the  second 
part,  witnesseth  : 

Whereas  it  hath  been  made  to  appear  to  said  overseer  of  the  poor, 
that  John  Jones  is  the  minor  child  of  poor  parents,  who  have  become 
chargeable  to  said  town,  as  having  a  lawful  settlement  therein,  (or, 
"  who  are  supported,"  &c.,  stating  such  a  case  as  comes  within  the 
law,)  therefore  the  said  overseer  of  the  poor,  by  virtue  and  conformity 
to  the  law  in  such  case  made  and  provided,  hath  bound  the  said  John 
Jones,  who  is  now  of  the  age  of  fifteen  years,  to  the  said  Samuel  I. 
Bradbury,  as  an  apprentice  to  learn  the  art  or  trade  of  a  Printer  ;  and 
as  such  apprentice  to  dwell  with  and  serve  the  said  Samuel  I.  Brad- 
bury, from  the  date  hereof,  until  the  said  John  Jones  shall  have 
attained  the  age  of  twenty-one  years,  which  will  be  on  the  ninth  of  May, 
1861.  And  it  is  hereby  agreed  and  understood,  that  the  said  John 
Jones  shall  well  and  faithfully  serve  the  said  Samuel  I.  Bradbury 
during  the  said  term,  and  shall  obey  all  his  lawful  and  reasonable 
commands ;  that  he  will  not  willingly  do  or  suffer  to  be  done,  any  harm 
or  damage  to  the  goods,  property  or  interest  of  the  said  master ;  that 
he  will  not,  without  leave,  absent  himself  from  the  service  of  his  said 
master,  but  that  he  will  in  all  things  during  the  said  term,  demean  and 
behave  himself  as  a  good  and  faithful  apprentice  to  his  said  master. 

And  the  said  Samuel  I.  Bradbury  doth,  on  his  part,  hereby  covenant 
and  agree,  in  consideration  of  the  undertaking  and  binding  aforesaid, 
to  teach  and  instruct  the  said  John  Jones  in  the  trade  of  a  Printer,  or 
otherwise  cause  him  to  be  well  and  sufficiently  taught  and  instructed 


PART  5.]  APPRENTICES.  395 

in  said  trade  ;  that  ho  will  furnish  and  provide,  or  cause  to  be  found, 
furnished,  and  provided  unto  the  said  John  Jones,  meat,  drink,  lodg- 
ing, and  suitable  and  proper  clothing,  in  sickness  and  in  health,  and 
medicine,  medical  attendance  and  nursing,  in  sickness,  during  the  said 
term. 

And  the  said  Samuel  1.  Bradbury  further  covenants  and  agrees 
that  he  will  teach,  or  cause  to  be  taught,  the  said  John  Jones  to  read 
and  write,  and  the  ground  rules  of  arithmetic  ;  and  at  the  expiration 
of  said  term,  will  pay  to  him,  the  said  John  Jones,  the  sum  of  one 
hundred  dollars,  a  new  bible,  and  two  complete  suits  of  new  wearing 
apparel  suitable  to  his  condition  in  life,  (or  suck  other  instruction, 
benefit  or  allowance  as  may  be  agreed  upon.) 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

FRANCIS  H.  PORTER,     [SEAL.] 
Overseer  of  the  Poor  of  the  town  of  Waukegan. 
.  SAMUEL  I.  BRADBURY.     [SEAL.] 

Certificate  of  Approbation  of  County  Judge,  of  the  binding  of  an 
infant  tvho  has  no  parents  or  guardian  in  the  State. 

I,  the  undersigned,  judge  of  the  county  court,  within  and  for  the 
county  of  Randolph,  and  State  of  Illinois,  do  hereby  approve  of  the 
binding  of  A.  B.,  the  within  named  infant,  by  himself  to  the  within 
named  C.  D.,  according  to  the  statute  in  such  case  made  and  provided. 

Given  under  my  hand  this  first  day  of  June,  A.  D.  1855. 

J.  M.,  County  Judge. 

Indenture  of  Apprentice  by  two  Overseers  'of  the  Poor,  of  a  minor. 

THIS  INDENTURE,  made  and  entered  into  t\\\s  first  day  of  June,  A.D. 
1855,  by  and  between  A.  B.  and  C.  D.,  overseers  of  the  poor,  (or 
"justices  of  the  peace,")  of  the  county  of  Randolph,  in  the  State  of 
Illinois,  of  the  one  part,  and  E.  F.  of  the  same  county,  of  the  other 
part,  witnesseth  : 

That  the  said  overseers  of  the  poor,  (or  "justices  of  the  peace,") 
by  virtue  of  the  sixth  section  of  the  sixth  chapter  of  the  revised  statutes 
relating  to  apprentices,  and  by  and  with  the  consent  of  the  judge  of 
probate  of  said  Randolph  county,  have  placed,  and  by  these  presents 
do  place  and  bind  out  as  an  apprentice,  a  poor  child,  named  G.  II.,  of 


396  APPRENTICES.  [PART  5. 

said  county,  of  the  age  of  fifteen  years,  the  said  G.  H.  being,  &C.,1  to 
the  said  E.  F.,  to  learn  the  Blacksmiths'  trade,  in  which  the  said  E.  F. 
is  engaged,  and  after  the  manner  of  an  apprentice  to  dwell  with,  and 
serve  the  said  E.  F.  from  the  date  hereof,  until  the  said  G.  H.  shall 
have  attained  the  age  of  twenty-one  years,  to  wit,  on  the  ninth  day  of 
May,  1861. 

And  it  is  hereby  agreed  and  understood,  that  the  said  G.  H.  shall 
'well  and  faithfully  serve  the  said  E.  P.,  during  the  said  term,  keep 
his  secrets,  and  obey  his  lawful  commands ;  shall  do  no  hurt  or  damage 
to  his  said  master  in  his  goods,  estate  or  otherwise,  nor  willingly  suffer 
any  to  be  done  by  others,  and  whether  prevented  or  not,  shall  forthwith 
give  notice  thereof  to  his  said  master ;  shall  not  inordinately  embezzle 
or  waste  the  goods  of  his  said  master,  nor  lend  them,  without  his 
consent,  to  any  person  or  persons  whatsoever ;  shall  not  play  at  any 
unlawful  game,  contract  matrimony,  haunt  or  frequent  any  grocery, 
tippling  or  gaming  house  ;  nor  at  any  time  by  day  or  night  depart  or 
absent  himself  from  the  service  of  his  said  master,  without  his  leave, 
but  shall  in  all  things,  as  a  good  and  faithful  apprentice,  demean  and 
behave  himself  to  his  said  master. 

And  the  said  E.  F,  on  his  part,  hereby  agrees,  in  consideration  of 
one  dollar  to  him  paid,  the  receipt  whereof  is  hereby  acknowledged,  to 
teach  and  instruct  the  said  G.  H.  in  the  Blacksmiths'  trade,  or  otherwise 
cause  him  to  be  well  and  sufficiently  instructed  in  said  trade  ;  that  he 
will  find  and  allow  unto  the  said  G.  H.,  meat,  drink,  washing,  lodging, 
and  apparel  suitable  for  working  and  holy-days,  and  all  other  things 
necessary  in  sickness  and  in  health,  and  meet  and  convenient  for  such 
an  apprentice,  during  the  term  aforesaid. 

And  the  said  E.  F.  hereby  further  agrees,  in  pursuance  of  the  statute 
in  such  case  made  and  provided,  that  he  will  teach  or  cause  to  be  taught 
the  said  G.  H.,  within  said  term,  to  read  and  write,  and  the  ground 
rules  of  arithmetic ;  and  at  the  expiration  of  said  term  of  service,  will 
give  unto  the  said  G.  H.  a  new  bible,  and  two  new  suits  of  clothes, 
suitable  to  his  condition  in  life. 

In  witness  whereof,  the  said  A.  B.  and  C.  D.,  and  the  said  E.  F., 
have  to  this,  and  one  other  indenture  of  the  same  tenor  and  date,  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 

Signed  and  sealed  in      ^  A.  B.     [SEAL.] 

presence  of  C.  D.     [SEAL.] 

J  E.  F.     [SEAL.] 

(1)  See  Rev.  Stat.  p.  62,  Sec.  6. 


PART  5.]  ARBITRATIONS  AND  AWARDS.  397 

II.  ARBITRATIONS  AND  AWARDS. 

All  persons  having  the  requisite  legal  capacity,  may,  by  an  instru- 
ment in  writing,  to  be  signed  and  sealed  by  them,  and  attested  by  at 
least  one  witness,  submit  to  one  or  more  arbitrators,  any  controversy 
existing  between  them,  not  in  suit,  and  may  in  such  submission  agree 
that  a  judgment  of  any  court  of  record,  competent  to  have  jurisdiction 
of  the  subject  matter,  to  be  named  in  such  instrument,  shall  -be  rendered  ' 
upon  the  award  made  pursuant  to  such  submission.1 

General  Form  of  a  Submission,  to  be  made  a  Rule  of  Court. 

WHEREAS  divers  disputes  and  controversies  have  arisen  and  are  now 
depending  and  unsettled,  between  A.  B.,  of  Watikegan,  in  the  county 
of  Lake,  and  State  of  Illinois,  of  the  one  part,  and  C.  D.,  of  said 
Waukegan,  of  the  other  part :  Now,  therefore,  for  the  purpose  of  set- 
tling and  determining  such  disputes  and  controversies,  it  is  hereby  mu- 
tually agreed  and  understood  by  and  between  the  said  parties,  that 
the  same  shall  be  referred  and  submitted  to  the  arbitrament  and  deter- 
mination of  E.  F.,  Gr.  H.  and  J.  K.,  all  of  said  county  and  State,  or 
any  two  of  them  ;  add  the  said  arbitrators,  or  any  two  of  them,  shall 
make  and  publish  their  award  in  writing,  under  their  hands  and  seals, 
and  deliver  the  same  to  the  parties,  or  to  either  of  them,  who  shall  de- 
sire the  same  on  or  before  the  first  day  of  July  next ;  and  it  is  hereby 
further  agreed  and  understood  by  and  between  the  said  parties,  that  this 
submission  shall  be  made  a  rule  of  the  circuit  court  within  and  for  the 
county  of  Lake  aforesaid. 

In  witness  whereof,  the  said  parties  have  to  this  and  one  other  instru- 
ment of  the  same  tenor  and  date,  set  their  hands  and  seals,  this  first 
day  of  June,  A.  D.  1855. 

Signed  and  sealed  in      ^)  A.  B.     [SEAL.] 

presence  of  v  C.  D.     [SEAL.] 


Short  Form  of  General  Submission. 

\       We,  the  undersigned,  hereby  mutually  agree  to  submit  all  our  mat- 
ters in  difference,  of  every  name  or  nature,  to  the  award  and  determi- 

(1)  Rev.  Stat.  56,  Sec.  1. 


398  ARBITRATIONS    AND    AWARDS.  [PART  5. 

nation  of  E.  F.,  L.  M.  and  S.  T.,  for  them  to  hear  and  determine  the 

same,  and  make  their  award  in  writing,  on  or  before  the day  of 

next. 

Witness  our  hands,  this day  of ,  18 — . 

In  presence  of     )  A.  B. 

G.  H.  >  '  C.  D. 

Arbitration  Bond,  to  be  mutual. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  A.  B.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  am  held  and  firmly  bound 
unto  C.  D.,  of  said  Waukegan,  in  the  sum  of  one  thousand  dollars,  to 
be  paid  to  the  said  C.  D.,  his  executors,  administrators  and  assigns, 
to  which  payment  well  and  truly  to  be  made,  I  do  bind  myself,  my 
heirs,  executors  and  administrators,  and  every  of  them  firmly  by  these 
presents. 

Sealed  with  my  seal,  dated  fas  first  day  of  June,  A.  D.  1855. 

The  condition  of  this  obligation  is  such  that  if  the  above  bound  A. 
B.,  his  heirs,  executors  and  administrators,  shall  in  all  things  well  and 
truly  stand  to,  abide,  perform,  observe,  fulfill,  and  keep  the  award, 
order,  arbitrament  and  determination  of  E.  F.,  Gr.  H,  and  J.  K.,  all 
of  said  county  and  State,  arbitrators  indifferently  selected  as  well  on 
the  part  and  behalf  of  the  above  bound  A.  B.  as  of  the  above  named 
C.  D.,  to  arbitrate,  award,  order,  adjudge,  and  determine,  of,  and  con- 
cerning all,  and  all  manner  of  actions,  suits,  cause  and  causes  of 
action,  bills,  bonds,  specialties,  covenants,  contracts,  promises,  judg- 
ments, executions,  accounts,  debts,  quarrels,  controversies,  damages, 
trespasses  and  demands  whatsoever,  both  in  law,  equity,  or  otherwise, 
which,  at  any  time  or  times  heretofore,  have  been  had,  made,  moved, 
brought,  commenced,  sued,  prosecuted,  committed,  done,  suffered,  or 
depending  and  unsettled  by  or  between  the  said  parties ;  so  that  the 
said  award  be  made  in  writing,  under  the  hands  and  seals  of  the 
said  arbitrators,  or  any  two  of  them,  and  ready  to  be  delivered  to  the 
said  parties  in  difference,  or  such  of  them  as  shall  desire  the  same,  on 
or  before  the  first  day  of  August  next ;  then  this  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  effect.  And  the  above  named  A. 
B.  doth  agree  and  desire  that  this  his  submission  may  be  made  a  rule 
of  the  circuit  court  within  and  for  the  county  of  Lake,  and  State 
aforesaid. 

Signed  and  sealed  in  presence  of)  A     -R      r         T 

A.    Jt>.       |_SEAL.J 


PART  5.]  ARBITRATIONS  AND  AWARDS.  399 

Certificate  of  Oath  of  Arbitrators. 

STATE  OF  ILLINOIS,] 
Lake  COUNTY,      j  ss 

I,  Amos  S.  Waterman,  a  justice  of  the  peace  of  said  county,  do  cer- 
tify that  E.  F.,  G.  H.,  and  J.  K.,  named  as  arbitrators  in  the  foregoing 
arbitration  bond,  before  proceeding  to  hear  any  testimony  in  the 
cause  therein  mentioned,  made  oath  that  they  would  faithfully  and  fairly 
hear,  examine  and  determine  the  cause  according  to  the  principles  of 
equity  and  justice,  and  make  a  just  and  true  award  to  said  court  accord- 
ing to  the  best  of  their  understanding. 

Given  under  my  hand  and  seal  this  tenth  day  of  June,  A.  D.  1855. 

AMOS  S.  WATERMAN.  [SEAL.] 

Award  of  Arbitrators. 

.  We,  the  subscribers,  arbitrators  appointed  by  submission,  (or  "rule 
of  court,"  or  "  arbitration  bond,")  hereunto  annexed,  having  notified 
and  met  the  parties,  and  heard  their  several  allegations,  proofs  and  ar- 
guments, and  duly  considered  the  same,  do  award  and  determine  that  the 
within  named  A.  B.  shall  recover  of  the  within  named  C.  D.,  the  sum 
of  dollars,  and  that  the  same  shall  be  in  full  of  all  matters 

within  referred  to  us.  E.  F. 

G.  H.    . 
J.  K. 

Notice  to  the  adverse  party  before  Judgment  is  entered  upon  an  award 
in  the  Circuit  Court. 

To  A.  B.  : 

Sir : — I  send  you  herewith  a  copy  of  the  award  made  the  first  day 
of  July,  A.  D.  1855,  by  E.  F.,  G.  H.  and  J.  K.,  of  the  county  of 
Lake,  and  State  of  Illinois,  on  a  reference  to  them  of  all  disputes  and 
controversies  existing  between  us  prior  to  the^rs^  day  of  June,  A.  D. 
1855,  by  our  submission  of  that  date ;  and  I  hereby  notify  you  to 
appear  on  the  first  day  of  the  next  term  of  the  Lake  county  circuit 
court,  to  be  holden  at  Waukegan,  within  and  for  said  Lake  county,  at 
the  court  house,  on  the  second  Monday  of  October  next,  and  show 
cause,  if  you  can,  why  judgment  should  not  then  and  there  be  entered 
by  said  circuit  court  against  you  on  the  said  award,  agreeably  to  the 
tenor  and  effect  thereof. 

July  1,  1855.  C.  D. 


400  AGREEMENTS.  [PART  5. 

III.  AGREEMENTS. 
General  Form  of  Agreement. 

THIS  AGREEMENT,  made  this  twenty-fourth  day  of  September,  one 
thousand  eight  hundred  and  fifty-five,  between  A.  B.,  of  the  town  of 
Waukegan,  and  State  of  Illinois,  of  the  first  part,  and  C.  D.,  of  the 
village  of  Hainesville  in  said  county  and  State,  of  the  second  part — 

Witnesseth,  that  the  said  A.  B.,  in  consideration  of  the  covenants  on 
the  part  of  the  party  of  the  second  part  hereinafter  contained,  doth  cov- 
enant and  agree  to  and  with  the  said  C.  D.,  that  (liere  insert  the  agree- 
ment on  the  part  of  A.  B.} 

And  the  said  C.  D.,  in  consideration  of  the  covenants  on  the  part  of 
the  party  of  the  first  part,  doth  covenant  and  agree  to,  and  with  the 
said  A.  B.,  that  (Jiere  insert  the  agreement  on  the  part  of  C.  D.) 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals,  the 
day  and  year  first  above  written. 

Signed,  sealed  and  delivered     ")  A.  B.     [SEAL.] 

in  the  presence  of  ^  C.  D.     [SEAL.] 

L.  M. 

.  Agreement  to  Sell  Land. 

•  ARTICLES  OF  AGREEMENT,  made  and  entered  into  the  tenth  day  of 
June,  A.  D.  1855,  between  A.  B.  of,  &c.,  of  the  first  part,  and  C.  D. 
of,  &c.,  of  the  second  part,  witnesscth  : 

That  the  said  party  of  the  first  part,  in  consideration  of  the  covenants 
and  agreements  hereinafter  contained  on  the  part  of  the  said  party  of 
the  second  part,  agrees  to  sell  unto  the  said  party  of  the  second  part, 
all  that  piece  or  parcel  of  land  bounded  and  described  as  follows  :  (here 
describe  the  premises')  for  the  sum  of  eight  hundred  dollars,  in  manner 
following,  to  wit:  three  hundred  dollars  on  the  execution  of  these 
presents,  two  hundred  and  fifty  dollars  on  the  tenth  day  of  December 
next,  and  the  remaining  sum  of  two  hundred  and  fifty  dollars  on  the 
tenth  day  of  June,  A.  D.  1856,  with  the  lawful  interest  from  this 
date  on  each  payment  at  the  time  of  making  the  same  ;  and  to  pay  all 
taxes  assessed  on  said  premises  during  the  continuance  of  this  contract. 

And  the  said  party  of  the  first  part  also  agrees  that  on  receiving  the 
said  sum  of  eight  hundred  dollars  at  the  time,  and  in  the  manner  above 
mentioned,  he  will  execute  and  deliver  to  the  said  party  of  the  second 
part,  at  his  own  proper  cost  and  expense,  a  good  and  sufficient  deed, 


ClIAP.  3.]  LIABILITY   OF   CONSTABLES   AND   SURETIES.  385 


CHAPTER    III. 

OF  THE  LIABILITY  OF  CONSTABLES  AND  SURETIES. 

Upon  the  failure  of  the  constable  to  pay  over  any  money  by  him 
collected  or  received  as  provided  by  the  statute,  to  any  person  entitled 
to  receive  the  same,  his  or  her  agent,  or  attorney,  such  person  may 
proceed  against  such  justice  or  constable  in  a  summary  way,  either 
before  the  circuit  court  or  some  justice  of  the  peace  of  the  proper 
county,  by  motion,  upon  giving  to  such  constable  five  days'  notice  of  the 
application;  and  recover  the  amount  so  neglected  or  refused  to  be  paid, 
with  twenty  per  cent,  damages  thereon,  for  such  detention,  and  shall 
have  execution  therefor.1 

If  any  constable  shall  neglect  or  fail  to  return  an  execution  within 
ten  days  after  its  proper  return  day,  or  if  the-  demand,  debt,  or  claim, 
be  wholly  or  in  part  lost,  or  if  any  special  damage  shall  arise  to  any 
party  by  reason  of  the  neglect  or  refusal  to  act,  or  the  misfeasance  or 
nonfeasance  of  any  constable  in  the  discharge  of  any  official  duty,  the 
party  aggrieved  may  have  his  action  in  the  circuit  court,  or,  when  the 
amount  claimed  does  not  exceed  one  hundred  dollars,  before  any  justice 
of  the  peace  of  the  proper  county,  against  such  constable  and  his  sure- 
ties on  the  official  bond  of  such  constable,  and  shall  recover  thereon  the 
amount  of  said  execution,  with  interest  from  the  date  of  the  judgment 
upon  which  the  original  execution  issued.2 

The  responsibility  of  the  sureties  is  held  to  be  co-extensive  with  that 
of  the  constable,  and  that  they  are  liable  whenever  he  is  liable  to  a 
party  in  whose  favor  an  execution  has  been  delivered  to  him ;  hence  an 
action  lies  upon  the  constable's  bond  or  instrument  of  security,  against 
the  constable  and  his  sureties,  for  the  mere  neglect  to  return  an  execu- 
tion within  the  time  prescribed  by  the  statute  after  the  return  day 
thereof,  and  this  without  showing  any  moneys  collected.3 

(1)  Rev.  Stat.  332,  Sec.  116.  (2)  Id.  Sec.  118.  (3)  10  Wend.  370. 

24 


386  LIABILITY   OF    CONSTABLES   AND    SURETIES.  [PART  4, 

The  remedy  provided  by  the  statute,  does  not  deprive  a  party  of  his 
common  law  remedy.1  Therefore,  where  a  constable  has  collected  the 
money  on  an  execution,  and  neglects  to  pay  it  over  to  the  person  enti- 
tled to  receive  the  same,  or  to  the  justice  who  issued  the  execution,  an 
action  of  assumpsit  for  money  had  and  received,  will  lie  against  the  con- 
stable to  recover  the  amount  collected,  without  any  previous  demand 
being  made.2  So  assumpsit  lies  against  a  constable  for  the  amount  of 
goods  sold  by  him,  though  the  purchaser  to  whom  they  are  delivered 
refuses  to  pay  for  them.8 

Where  a  constable  or  other  officer  neglects  his  duty,  or  abuses  the 
trust  reposed  in  him  by  law,  to  the  injury  or  damage  of  another,  an 
action  on  the  case  lies  against  him  in  the  circuit  court,  at  the  suit  of  the 
party  sustaining  the  injury.4  Thus,  if  a  constable  neglect  to  serve  a 
writ  or  precept  delivered  to  him,  this  action  lies  for  the  injury  suffered 
by  such  neglect  or  refusal.5 

(1)  10  Johns.  390.  (2)  3  Johns.  182 ;  1  Wend.  634 ;  16  East,  274. 

(3)  9  Johns.  96.        .  (4)  1  Scam.  237.  (5)  1  Scam.  200. 


ClIAP.  4.]        POWERS    OF    CONSTABLES    IN    CRIMINAL    CASES.  387 


CHAPTER    IV. 

OF  THE  POWERS  AND  DUTIES  OF  CONSTABLES  IN  CRIMINAL 

CASES. 

I.  His  POWERS  GENERALLY. 
II.  OF  ARRESTS. 

I.    HIS    POWERS    GENERALLY. 

Rev.  Stat.  328,  Sec.  88.  "  It  shall  be  the  duty  of  every  constable, 
when  any  felony  or  breach  of  the  peace  shall  be  committed  in  his  pres- 
ence, forthwith  to  apprehend  the  person  committing  the  same,  and 
bring  him  before  some  justice  of  the  peace,  to  be  dealt  with  according 
to  law  ;  to  suppress  all  riots  and  unlawful  assemblies,  and  to  keep  the 
peace,  and  also  to  serve  and  execute  all  warrants,  writs,  precepts,  and 
other  process  to  him  lawfully  directed  ;  and  generally  to  do  and  per- 
form all  things  appertaining  to  the  office  of  constable  within  this  State." 

The  office  of  constable  is  either  ministerial  in  obeying  warrants  and 
precepts,  or  is  original  as  a  conservator  of  the  peace,  at  common  law, 
or  by  virtue  of  particular  acts  of  the  legislature.  By  the  original  and 
inherent  power  which  he  possesses,  he  may,  for  treason,  felony,  breach 
of  the  peace,  and  some  misdemeanors  less  than  felony,  committed  in  his 
view,  apprehend  the  supposed  offender,  without  warrant.1  So  if  a  fel- 
ony has  been  committed,  a  constable,  or  any  peace  officer,  may  lawfully 
apprehend  a  supposed  offender,  upon  the  information  of  others,  without 
any  positive  charge,  or  his  own  knowledge  of  the  circumstances  on 
which  the  suspicion  is  founded.2  In  general,  however,  a  constable  can- 
not of  his  own  accord,  and  without  an  express  charge  or  warrant,  justify 

(1)  1  Hale,  587.  (2)  1  East's  P.  0.  301 ;  6  T.  R.  315;  6  Bin.  316. 


388  ARRESTS.  [PART  4, 

the  arrest  of  a  supposed  offender,  upon  suspicion  of  his  guilt,  unless  he 
can  show  that  a  felony  was  committed  by  some  person,  as  well  as  the 
reasonableness  of  the  suspicion  that  the  party  imprisoned  is  guilty.1 

So  a  constable  may,  without  warrant,  apprehend  any  one  for  a  breach 
of  the  peace,  in  his  presence,  and  detain  him  until  he  can  bring  him 
before  a  magistrate.2  A  constable  may,  also,  upon  his  own  view,  law- 
fully interpose  to  prevent  a  breach  of  the  peace,  or  to  quiet  an  affray  ; 
and  if  he  or  any  of  his  assistants,  whether  commanded  or  not,  be  killed, 
it  will  be  murder  in  all  who  take  part  in  the  assistance,  there  being 
either  express  or  implied  notification  of  the  character  in  which  he  in- 
terposed.8 


II.     OP   ARRESTS. 

An  arrest,  in  criminal  cases,  is  the  apprehending  or  detaining  a  per- 
son, in  order  that  he  may  be  forthcoming  to  answer  to  a  crime  alleged 
against  him,  or  of  which  he  is  suspected  to  be  guilty.4  To  this  arrest 
all  persons  without  distinction  are  liable,  when  accused  of  a  criminal 
offense.  The  exemptions  which  exist  in  civil  cases,  here  cease  to  ope- 
rate. It  is  laid  down  that  no  person  can  be  arrested  unless  charged 
with  such  a  crime  as  will  at  least  justify  holding  him  to  bail  when  taken.5 

To  constitute  an  arrest,  the  party  must  be  actually  touched  by  the 
officer,  or  confined  in  a  room,  or  submit  himself,  by  words  or  actions,  to 
be  in  custody.  The  mere  giving  in  charge,  or  causing  him  voluntarily 
to  appear  before  a  magistrate,  without  the  person  being  taken  into 
actual  custody,  will  not  amount  to  an  arrest ;  for  bare  words  in  this 
respect,  will  not  be  of  any  avail.6  But  no  manual  touching  of  the 
body,  or  actual  force,  is  necessary,  in  order  to  constitute  an  arrest ;  it 
is  sufficient  if  the  party  is  within  the  power  of  the  officer,  and  submits 
to  the  arrest.7  Yet,  it  is  said  to  be  better  in  all  cases  to  touch  the  pris- 
oner's person,  in  order  to  complete  the  arrest ;  taking  care,  at  the  same 
time,  to  use  no  greater  force  or  constraint  than  is  necessary  for  his  safe 
custody ;  the  degree  of  which  will  depend  upon  the  particular  circum- 

(1)  4  Esp.  80;  1  Chit.  Crim.  L.  18.  (2)  Bale's  P.  C.  587;  3  Wend.  384. 

(3)  1  Kast's  P.  C.  303.  (4)  4  Bl.  Com.  288;  1  Chit.  Crim.  L.  12. 

(5)  4  Bl.  Com.  289. 

(6)  1  Chit.  Crim.  L.  48;  Davis'  Just.  64;  1  East's  P.  C.  330. 

(7)  Barb.  Crim.  L.  531,  and  authorities  cited. 


CHAP.  4.]  ARRESTS.  389 

.stances  of  the  case — as,  the  character  of  the  party,  the  nature  of  the 
offense  charged,  the  state  of  the  country,  &C.1 

As  no  time  is  prescribed  in  the  warrant  within  which  it  is  to  be  exe- 
cuted, it  continues  in  force  until  fully  executed,  during  the  term  of  office 
of  the  magistrate  who  granted  it.  And  it  is  said  that  a  person  may  be 
twice  apprehended  under  it,  if  the  purposes  of  justice  have  not  been 
effected.  In  case  of  a  negligent  escape,  the  prisoner  may  be  retaken. 
Otherwise,  however,  if  the  escape  be  voluntary.  It  is  unquestionably  the 
duty  of  the  officer  to  act  according  to  the  exigency  of  his  process,  which 
is,  "forthwith  to  take  the  person  accused,"  if  practicable.  If  the  officer 
should  willfully  neglect  his  duty  in  this  respect,  he  would  doubtless 
render  himself  liable  to  be  punished  criminally.  And  should  any  per- 
son having  charge  of  such  process,  misconduct  himself  by  keeping  it 
back,  to  be  afterwards  made  use  of  for  vexatious  or  improper  purposes, 
he  may  subject  himself  to  an  action  for  a  malicious  prosecution,  at  the 
suit  of  the  party  aggrieved.2 

(1)  1  Nun.  &  Walsh,  203.  (2)  See  Barb.  Crim.  L.  532. 


390  CONSTABLE'S  FEES.  [PART  4, 


CHAPTER   V. 


OF  FEES  AND  COMPENSATIONS  ALLOWED  TO  CONSTABLES 
IN  BOTH  CIVIL  AND  CRIMINAL  CASES. 

CONSTABLE'S  FEES  IN  CRIMINAL  CASES. 

Rev.  Stat.  247,  Sec.  18.  "For  serving  a  warrant  on  each  person 
named  therein,  twenty-five  cents. 

Mileage,  to  be  computed  from  the  office  of  the  justice  who  may  have 
issued  the  same,  to  the  place  of  service,  for  each  mile,  six  and  a  fourth 
cents. 

Serving  each  subpoena,  twelve  and  a  half  cents. 

Mileage  from  the  justice's  office  to  the  residence  of  the  witness,  per 
mile,  six  and  a  fourth  cents. 

Taking  each  person  to  jail  when  committed,  twenty-five  cents. 

Mileage  from  the  justice's  office  to  the  jail,  per  mile,  six  and  a  fourth 
cents. 

For  summoning  jury  in  case  of  assault  and  battery,  fifty  cents. 

But  in  all  cases  where  the  defendant  shall  be  acquitted,  or  otherwise 
discharged,  without  the  payment  of  costs,  the  constable  shall  not  be 
entitled  to  any  fees." 


CONSTABLE  S    FEES    IN    CIVIL    CASES. 

Rev.  Stat.  247,  Sec.  19.     "  Serving  and  returning  each  warrant 
or  summons,  twenty-five  cents. 

Serving  and  returning  each  subpoena,  twelve  and  a  half  cents. 
Serving  and  returning  execution,  fifty  cents. 


CHAP.  5.]  CONSTABLE'S  FEES.  391 

Advertising  property  for  sale,  twenty-five  cents. 

Commission  on  sales  not  exceeding  ten  dollars,  ten  per  centum, 
and  on  all  sales  exceeding  that  sum,  six  per  centum. 

Attending  trial  before  a  justice  in  each  jury  cause,  twenty-five  cents. 

Serving  jury  warrant  in  each  case,  fifty  cents. 

Each  day's  attendance  on  the  circuit  court,  when  required  to  be 
paid  out  of  the  county  treasury,  one  dollar. 

Mileage,  when  serving  a  warrant,  summons  or  subpoena,  from  the 
justice's  office  to  the  residence  of  the  defendant  or  witness,  per  mile, 
five  cents. 

For  serving  warrant  on  appraisers  in  cases  of  estrays,  &c.,  twenty- 
five  cents." 


392  APPRENTICES.  PART  5, 


PART    FIFTH. 

COMMON  FORMS  FOB  THE  TRANSACTION  OF  BUSINESS. 

I.  APPRENTICES. 

II.  ARBITRATIONS  AND  AWARDS. 

III.  AGREEMENTS. 

IV.  ASSIGNMENTS. 

V.  BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

VI.  BILLS  OF  SALE. 

VII.  BONDS. 

VIII.  COPARTNERSHIP. 

IX.  CONVEYANCES. 

X.  LEASES. 

XI.  POWERS  OF  ATTORNEY. 

XII.  KELEASES. 

XIII.  WILLS. 

I.    APPRENTICES. 
Indenture  of  Apprenticeship  of  a  Minor,  with  the  consent  of  the  father. 

THIS  INDENTURE,  made  and  entered  into  this  fast  day  of  June,  A.  D. 
1855,  by  and  between  A.  B.  a  minor,  of  the  age  of  eighteen  years  on 
the  eighth  day  of  March  last,  of  his  own  free  will  and  accord,  and  by 
and  with  the  consent  of  E.  B.,  his  father,  of  the  county  of  McHenry, 
and  State  of  Illinois,  of  the  one  part,  and  C.  D.  of  Waukegan,  in  the 
county  of  Lake  and  State  aforesaid,  of  the  other  part,  witnesseth  : 

That  the  said  A.  B.  hath  placed  and  bound  himself  apprentice  to  the 
said  C.  D.,  to  learn  the  trade  of  a  Painter,  and  to  dwell  with  the  said 
C.  D.,  continue  with  and  serve  him  for  the  term  of  three  years  from  the 
date  hereof,  until  the  said  A.  B.  shall  have  attained  the  age  of  twenty- 
one  years,  to  wit,  until  the  eighth  day  of  March,  A.  D.  1858.  And  the 
said  A.  B.  on  his  part,  hereby  agrees,  that  during  the  said  term,  he 


PART  5.]  APPRENTICES.  393 

* 

will  well  and  faithfully  serve  the  said  C.  D.,  keep  his  secrets,  and  obey  his 
lawful  commands  ;  that  he  will  do  no  hurt  or  damage  to  his  said  master 
in  his  goods,  estate,  or  otherwise,  nor  willingly  suffer  any  to  be  done 
by  others,  and  whether  prevented  or  not,  shall  forthwith  give  notice 
thereof  to  his  said  master ;  that  he  will  not  inordinately  embezzle  or 
waste  the  goods  of  his  said  master,  nor  lend  them  without  his  consent, 
to  any  person  or  persons  whatsoever ;  that  he  will  not  play  at  cards, 
dice,  or  any  other  unlawful  games ;  that  he  will  not  contract  matrimony 
during  said  term,  or  haunt  or  frequent  groceries,  tippling  houses,  or 
places  of  gaming  ;  and  that  he  will  not  at  any  time,  by  day  or  night, 
depart  or  absent  himself  from  the  service  of  his  said  master,  without  his 
leave,  but  will,  in  all  things,  as  a  good  and  faithful  apprentice,  demean 
and  behave  himself  to  his  said  master  during  said  term. 

And  the  said  C.  D.  on  his  part,  hereby  agrees,  in  consideration  of 
one  dollar  to  him  paid,  the  receipt  whereof  is  hereby  acknowledged,  to 
teach  and  instruct  the  said  A.  B.  in  the  art  of  Painting,  or  otherwise 
cause  him  to  be  well  and  sufficiently  instructed  in  said  art ;  that  he  will 
find  and  allow  unto  the  said  A.  B.,  meat,  drink,  washing,  lodging  and 
apparel,  both  linen  and  woolen,  and  all  other  things  necessary  in  sick- 
ness and  in  health,  meet  and  convenient  for  such  an  apprentice,  during 
the  term  aforesaid. 

And  the  said  C.  D.  hereby  further  agrees,  in  pursuance  of  the  stat- 
ute in  such  case  made  and  provided,  that  he  will  teach,  or  cause  to  be 
taught,  the  said  A.  B.,  within  said  term,  to  read  and  write,  and  the 
ground  rules  of  arithmetic ;  and  at  the  expiration  of  said  term  of  service, 
will  give  unto  the  said  A.  B.,  a  new  bible,  and  two  new  suits  of  clothes 
suitable  to  his  condition  in  life. 

In  witness  whereof,  the  said  A.  B.  and  the  said  E.  B.,  father  of  the 
said  A.  B.  and  the  said  C.  D.,  have  to  this  and  one  other  indenture  of 
the  same  tenor  and  date,  set  their  hands  and  seals  the  day  and  year 
first  above  written.  A.  B.  [SEAL.] 

Signed  and  sealed  in  }  E.  B.     [SEAL.] 

presence  of  C.  D.     [SKAL.] 


Form  of  Indorsement  on  Indenture  of  Apprenticeship,  when  father 
covenants  for  faithful  performance  of  his  son. 

In  consideration  of  the  within  mentioned  agreements  of  the  said  C. 
D.,  I  do  hereby  separately  covenant  and  agree  with  the  said  C.  D., 


4  APPRENTICES.  [PART  5. 

» 

that  the  within  named  A.  B.  shall  well  and  faithfully  perform  and 
observe  all  the  stipulations  on  his  part  within  mentioned,  to  which  true 
and  faithful  performance  and  observance,  I  bind  myself  firmly  by  these 
presents. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the  day 
and  year  first  within  mentioned. 

Signed  and  sealed  in  ")  E.  B.     [SEAL.] 

presence  of 

S.  C.     J 

Form  of  Indenture  binding  poor  child,  by  Overseer  of  Poor, 
under  township  organization. 

THIS  INDENTURE,  made  and  entered  into  on  the  first  day  of  June, 
A.D.  1855,  by  and  between  Francis  H.  Porter,  Overseer  of  the  Poor 
of  the  town  of  Waukegan,  in  the  county  of  Lake,  for  the  year  1855,  of 
the  first  part,  and  Samuel  I.  Bradbury,  of  said  town,  of  the  second 
part,  witnesseth  : 

Whereas  it  hath  been  made  to  appear  to  said  overseer  of  the  poor, 
that  John  Jones  is  the  minor  child  of  poor  parents,  who  have  become 
chargeable  to  said  town,  as  having  a  lawful  settlement  therein,  (or, 
"  who  are  supported,"  &c.,  stating  such  a  case  as  comes  within  the 
law,)  therefore  the  said  overseer  of  the  poor,  by  virtue  and  conformity 
to  the  law  in  such  case  made  and  provided,  hath  bound  the  said  John 
Jones,  who  is  now  of  the  age  of  fifteen  years,  to  the  said  Samuel  I. 
Bradbury,  as  an  apprentice  to  learn  the  art  or  trade  of  a  Printer  ;  and 
as  such  apprentice  to  dwell  with  and  serve  the  said  Samuel  I.  Brad- 
bury, from  the  date  hereof,  until  the  said  John  Jones  shall  have 
attained  the  age  of  twenty-one  years,  which  will  be  on  the  ninth  of  May, 
1861.  And  it  is  hereby  agreed  and  understood,  that  the  said  John 
Jones  shall  well  and  faithfully  serve  the  said  Samuel  I.  Bradbury 
during  the  said  term,  and  shall  obey  all  his  lawful  and  reasonable 
commands ;  that  he  will  not  willingly  do  or  suffer  to  be  done,  any  harm 
or  damage  to  the  goods,  property  or  interest  of  the  said  master ;  that 
he  will  not,  without  leave,  absent  himself  from  the  service  of  his  said 
master,  but  that  he  will  in  all  things  during  the  said  term,  demean  and 
behave  himself  as  a  good  and  faithful  apprentice  to  his  said  master. 

And  the  said  Samuel  I.  Bradbury  doth,  on  his  part,  hereby  covenant 
and  agree,  in  consideration  of  the  undertaking  and  binding  aforesaid, 
to  teach  and  instruct  the  said  John  Jones  in  the  trade  of  a  Printer,  or 
otherwise  cause  him  to  be  well  and  sufficiently  taught  and  instructed 


PART  5.]  APPRENTICES.  395 

in  said  trade  ;  that  ho  will  furnish  and  provide,  or  cause  to  be  found, 
furnished,  and  provided  unto  the  said  John  Jones,  meat,  drink,  lodg- 
ing, and  suitable  and  proper  clothing,  in  sickness  and  in  health,  and 
medicine,  medical  attendance  and  nursing,  in  sickness,  during  the  said 
term. 

And  the  said  Samuel  1.  Bradbury  further  covenants  and  agrees 
that  he  will  teach,  or  cause  to  be  taught,  the  said  John  Jones  to  read 
and  write,  and  the  ground  rules  of  arithmetic  ;  and  at  the  expiration 
of  said  term,  will  pay  to  him,  the  said  John  Jones,  the  sum  of  one 
hundred  dollars,  a  new  bible,  and  two  complete  suits  of  new  wearing 
apparel  suitable  to  his  condition  in  life,  (or  such  other  instruction, 
benefit  or  allowance  as  may  be  agreed  upon.} 

In  witness  whereof,  the  said  parties  have  hereto  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

FRANCIS  H.  POUTER,     [SEAL.] 
Overseer  of  the  Poor  of  the  town  of  Waukegan. 
SAMUEL  I.  BRADBURY.     [SEAL.] 

Certificate  of  Approbation  of  County  Judge,  of  the  binding  of  an 
infant  who  has  no  parents  or  guardian  in  the  State. 

I,  the  undersigned,  judge  of  the  county  court,  within  and  for  the 
county  of  Randolph,  and  State  of  Illinois,  do  hereby  approve  of  the 
binding  of  A.  B.,  the  within  named  infant,  by  himself  to  the  within 
named  C.  D.,  according  to  the  statute  in  such  case  made  and  provided. 

Given  under  my  hand  this  first  day  of  June,  A.  D.  1855. 

J.  M.,   County  Judge. 

Indenture  of  Apprentice  by  two  Overseers  of  the  Poor,  of  a  minor. 

THIS  INDENTURE,  made  and  entered  into  tiai\$  first  day  of  June,  A.D. 
1855,  by  and  between  A.  B.  and  C.  D.,  overseers  of  the  poor,  (or 
"justices  of  the  peace,")  of  the  county  of  Randolph,  in  the  State  of 
Illinois,  of  the  one  part,  and  E.  F.  of  the  same  county,  of  the  other 
part,  witnesseth  : 

That  the  said  overseers  of  the  poor,  (or  "justices  of  the  peace,") 
by  virtue  of  the  sixth  section  of  the  sixth  chapter  of  the  revised  statutes 
relating  to  apprentices,  and  by  and  with  the  consent  of  the  judge  of 
probate  of  said  Randolph  county,  have  placed,  and  by  these  presents 
do  place  and  bind  out  as  an  apprentice,  a  poor  child,  named  Gr.  II.,  of 


396  APPRENTICES.  [PART  5. 

said  county,  of  the  age  of  fifteen  years,  the  said  G.  H.  being,  &C.,1  to 
the  said  E.  F.,  to  learn  the  Blacksmiths'  trade,  in  which  the  said  E.  F. 
is  engaged,  and  after  the  manner  of  an  apprentice  to  dwell  with,  and 
serve  the  said  E.  F.  from  the  date  hereof,  until  the  said  G.  H.  shall 
have  attained  the  age  of  twenty-one  years,  to  wit,  on  the  ninth  day  of 
May,  1861. 

And  it  is  hereby  agreed  and  understood,  that  the  said  G.  H.  shall 
well  and  faithfully  serve  the  said  E.  F.,  during  the  said  term,  keep 
his  secrets,  and  obey  his  lawful  commands ;  shall  do  no  hurt  or  damage 
to  his  said  master  in  his  goods,  estate  or  otherwise,  nor  willingly  suffer 
any  to  be  done  by  others,  and  whether  prevented  or  not,  shall  forthwith 
give  notice  thereof  to  his  said  master  ;  shall  not  inordinately  embezzle 
or  waste  the  goods  of  his  said  master,  nor  lend  them,  without  his 
consent,  to  any  person  or  persons  whatsoever ;  shall  not  play  at  any 
unlawful  game,  contract  matrimony,  haunt  or  frequent  any  grocery, 
tippling  or  gaming  house  ;  nor  at  any  time  by  day  or  night  depart  or 
absent  himself  from  the  service  of  his  said  master,  without  his  leave, 
but  shall  in  all  things,  as  a  good  and  faithful  apprentice,  demean  and 
behave  himself  to  his  said  master. 

And  the  said  E.  F.  on  his  part,  hereby  agrees,  in  consideration  of 
one  dollar  to  him  paid,  the  receipt  whereof  is  hereby  acknowledged,  to 
teach  and  instruct  the  said  G.  H.  in  the  Blacksmiths'  trade,  or  otherwise 
cause  him  to  be  well  and  sufficiently  instructed  in  said  trade  ;  that  he 
will  find  and  allow  unto  the  said  G.  H.,  meat,  drink,  washing,  lodging, 
and  apparel  suitable  for  working  and  holy-days,  and  all  other  things 
necessary  in  sickness  and  in  health,  and  meet  and  convenient  for  such 
an  apprentice,  during  the  term  aforesaid. 

And  the  said  E.  F.  hereby  further  agrees,  in  pursuance  of  the  statute 
in  such  case  made  and  provided,  that  he  will  teach  or  cause  to  be  taught 
the  said  G.  H.,  within  said  term,  to  read  and  write,  and  the  ground 
rules  of  arithmetic ;  and  at  the  expiration  of  said  term  of  service,  will 
give  unto  the  said  G.  H.  a  new  bible,  and  two  new  suits  of  clothes, 
suitable  to  his  condition  in  life. 

In  witness  whereof,  the  said  A.  B.  and  C.  D.,  and  the  said  E.  F., 
have  to  this,  and  one  other  indenture  of  the  same  tenor  and  date,  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 

Signed  and  sealed  in      ^  A.  B.     [SEAL.] 

presence  of  C.  D.     [SEAL.] 

E.  F.     [SEAL.] 

(1)  See  Rev.  Stat.  p.  52,  Sec.  6. 


PART  5.]  ARBITRATIONS  AND  AWARDS.  397 

II.  ARBITRATIONS  AND  AWARDS. 

All  persons  having  the  requisite  legal  capacity,  may,  by  an  instru- 
ment in  writing,  to  be  signed  and  sealed  by  them,  and  attested  by  at 
least  one  witness,  submit  to  one  or  more  arbitrators,  any  controversy 
existing  between  them,  not  in  suit,  and  may  in  such  submission  agree 
that  a  judgment  of  any  court  of  record,  competent  to  have  jurisdiction 
of  the  subject  matter,  to  be  named  in  such  instrument,  shall  be  rendered 
upon  the  award  made  pursuant  to  such  submission.1 

General  Form  of  a  Submission,  to  be  made  a  Rule  of  Court. 

WHEREAS  divers  disputes  and  controversies  have  arisen  and  are  now 
depending  and  unsettled,  between  A.  B.,  of  Waukegan,  in  the  county 
of  Lake,  and  State  of  Illinois,  of  the  one  part,  and  0.  D.,  of  said 
Waukegan,  of  the  other  part :  Now,  therefore,  for  the  purpose  of  set- 
tling and  determining  such  disputes  and  controversies,  it  is  hereby  mu- 
tually agreed  and  understood  by  and  between  the  said  parties,  that 
the  same  shall  be  referred  and  submitted  to  the  arbitrament  and  deter- 
mination of  E.  F.,  Gr.  H.  and  J.  K.,  all  of  said  county  and  State,  or 
any  two  of  them  ;  and  the  said  arbitrators,  or  any  two  of  them,  shall 
make  and  publish  their  award  in  writing,  under  their  hands  and  seals, 
and  deliver  the  same  to  the  parties,  or  to  either  of  them,  who  shall  de- 
sire the  same  on  or  before  the  first  day  of  July  next ;  and  it  is  hereby 
further  agreed  and  understood  by  and  between  the  said  parties,  that  this 
submission  shall  be  made  a  rule  of  the  circuit  court  within  and  for  the 
county  of  Lake  aforesaid. 

In  witness  whereof,  the  said  parties  have  to  this  and  one  other  instru- 
ment of  the  same  tenor  and  date,  set  their  hands  and  seals,  this  first 
day  of  June,  A.  D.  1855. 

Signed  and  sealed  in     ^  A.  B.     [SEAL.] 

presence  of  C.  D.     [SEAL.] 


Short  Form  of  General  Submission. 

We,  the  undersigned,  hereby  mutually  agree  to  submit  all  our  mat- 
ters in  difference,  of  every  name  or  nature,  to  the  award  and  determi- 

(1)  Rev.  Stat.  56,  Sec.  1. 


398  ARBITRATIONS    AND   AWARDS.  [PART  5. 

nation  of  E.  F.,  L.  M.  and  S.  T.,  for  them  to  hear  and  determine  the 

same,  and  make  their  award  in  writing,  on  or  before  the day  of 

next. 

Witness  our  hands,  this day  of ,  18 — . 

In  presence  of     ">  A.  B. 

G.  H.  f  C.  D. 

Arbitration  Bond,  to  be  mutual. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  A.  B.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  am  held  and  firmly  bound 
unto  C.  D.,  of  said  Waukegan,  in  the  sum  of  one  thousand  dollars,  to 
be  paid  to  the  said  C.  D.,  his  executors,  administrators  and  assigns, 
to  which  payment  well  and  truly  to  be  made,  I  do  bind  myself,  my 
heirs,  executors  and  administrators,  and  every  of  them  firmly  by  these 
presents. 

Sealed  with  my  seal,  dated  the  first  day  of  June,  A.  D.  1855. 

The  condition  of  this  obligation  is  such  that  if  the  above  bound  A. 
B.,  his  heirs,  executors  and  administrators,  shall  in  all  things  well  and 
truly  stand  to,  abide,  perform,  observe,  fulfill,  and  keep  the  award, 
order,  arbitrament  and  determination  of  E.  F.,  Gr.  H,  and  J.  K.,  all 
of  said  county  and  State,  arbitrators  indifferently  selected  as  well  on 
the  part  and  behalf  of  the  above  bound  A.  B.  as  of  the  above  named 
C.  D.,  to  arbitrate,  award,  order,  adjudge,  and  determine,  of,  and  con- 
cerning all,  and  all  manner  of  actions,  suits,  cause  and  causes  of 
action,  bills,  bonds,  specialties,  covenants,  contracts,  promises,  judg- 
ments, executions,  accounts,  debts,  quarrels,  controversies,  damages, 
trespasses  and  demands  whatsoever,  both  in  law,  equity,  or  otherwise, 
which,  at  any  time  or  times  heretofore,  have  been  had,  made,  moved, 
brought,  commenced,  sued,  prosecuted,  committed,  done,  suffered,  or 
depending  and  unsettled  by  or  between  the  said  parties ;  so  that  the 
said  award  be  made  in  writing,  under  the  hands  and  seals  of  the 
said  arbitrators,  or  any  two  of  them,  and  ready  to  be  delivered  to  the 
said  parties  in  difference,  or  such  of  them  as  shall  desire  the  same,  on 
or  before  the  first  day  of  August  next ;  then  this  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  effect.  And  the  above  named  A. 
B.  doth  agree  and  desire  that  this  his  submission  may  be  made  a  rule 
of  the  circuit  court  within  and  for  the  county  of  Lake,  and  State 
aforesaid. 

Signed  and  sealed  in  presence  of)  A    B      f«       1 


PART  5.]  ARBITRATIONS  AND  AWARDS.  390 

Certificate  of  Oath  of  Arbitrators. 

STATE  OF  ILLINOIS,  ") 
Lake  COUNTY,      )  ss' 

I,  Amos  S.  Waterman,  a  justice  of  the  peace  of  said  county,  do  cer- 
tify that  E.  F.,  G.  H.,  and  J.  K.,  named  as  arbitrators  in  the  foregoing 
arbitration  bond,  before  proceeding  to  hear  any  testimony  in  the 
cause  therein  mentioned,  made  oath  that  they  would  faithfully  and  fairly 
hear,  examine  and  determine  the  cause  according  to  the  principles  of 
equity  and  justice,  and  make  a  just  and  true  award  to  said  court  accord- 
ing to  the  best  of  their  understanding. 

Given  under  my  hand  and  seal  this  tenth  day  of  June,  A.  D.  1855. 

AMOS  S.  WATERMAN.  [SEAL.] 

Award  of  Arbitrators. 

We,  the  subscribers,  arbitrators  appointed  by  submission,  (or  "rule 
of  court,"  or  "  arbitration  bond,")  hereunto  annexed,  having  notified 
and  met  the  parties,  and  heard  their  several  allegations,  proofs  and  ar- 
guments, and  duly  considered  the  same,  do  award  and  determine  that  the 
within  named  A.  B.  shall  recover  of  the  within  named  C.  D.,  the  sum 
of  • dollars,  and  that  the  same  shall  be  in  full  of  all  matters 

within  referred  to  us.  E.  F. 

G.  H. 
J.  K. 

Notice  to  the  adverse  party  before  Judgment  is  entered  upon  an  award 
in  the  Circuit  Court. 

To  A.  B. : 

Sir : — I  send  you  herewith  a  copy  of  the  award  made  the  first  day 
of  July,  A.  D.  1855,  by  E.  F.,  G.  H.  and  J.  K.,  of  the  county  of 
Lake,  and  State  of  Illinois,  on  a  reference  to  them  of  all  disputes  and 
controversies  existing  between  us  prior  to  ike  first  day  of  June,  A.  D. 
1855,  by  our  submission  of  that  date ;  and  I  hereby  notify  you  to 
appear  on  the  first  day  of  the  next  term  of  the  Lake  county  circuit 
court,  to  be  holden  at  Waukegan,  within  and  for  said  Lake  county,  at 
the  court  house,  on  the  second  Monday  of  October  next,  and  show 
cause,  if  you  can,  why  judgment  should  not  then  and  there  be  entered 
by  said  circuit  court  against  you  on  the  said  award,  agreeably  to  the 
tenor  and  effect  thereof. 

July  1,  1855.  C.  D. 

m 


400  AGREEMENTS.  [PART  5. 

III.  AGREEMENTS. 
General  Form  of  Agreement. 

THIS  AGREEMENT,  made  this  twenty-fourth  day  of  September,  one 
thousand  eight  hundred  and  fifty-five,  between  A.  B.,  of  the  town  of 
Waukegan,  and  State  of  Illinois,  of  the  first  part,  and  C.  D.,  of  the 
village  of  Hainesville  in  said  county  and  State,  of  the  second  part — 

Witnesseth,  that  the  said  A.  B.,  in  consideration  of  the  covenants  on 
the  part  of  the  party  of  the  second  part  hereinafter  contained,  doth  cov- 
enant and  agree  to  and  with  the  said  C.  D.,  that  (Jiere  insert  the  agree- 
ment on  the  part  of  A.  ./?.) 

And  the  said  C.  D.,  in  consideration  of  the  covenants  on  the  part  of 
the  party  of  the  first  part,  doth  covenant  and  agree  to,  and  with  the 
said  A.  B.,  that  (Jier'e  insert  the  agreement  on  the  part  of  C.  D.) 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals,  the 
day  and  year  first  above  written. 

Signed,  sealed  and  delivered     "|  A.  B.     [SEAL.] 

in  the  presence  of  ^  C.  D.     [SEAL.] 

L.  M. 

Agreement  to  Sell  Land. 

ARTICLES  OF  AGREEMENT,  made  and  entered  into  the  tenth  day  of 
June,  A.  D.  1855,  between  A.  B.  of,  &c.,  of  the  first  part,  and  C.  D. 
of,  &c. ,  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  in  consideration  of  the  covenants 
and  agreements  hereinafter  contained  on  the  part  of  the  said  party  of 
the  second  part,  agrees  to  sell  unto  the  said  party  of  the  second  part, 
all  that  piece  or  parcel  of  land  bounded  and  described  as  follows  :  (here 
describe  the  premises)  for  the  sum  of  eight  hundred  dollars,  in  manner 
following,  to  wit :  three  hundred  dollars  on  the  execution  of  these 
presents,  two  hundred  and  fifty  dollars  on  the  tenth  day  of  December 
next,  and  the  remaining  sum  of  two  hundred  and  fifty  dollars  on  the 
tenth  day  of  June,  A.  D.  1856,  with  the  lawful  interest  from  this 
date  on  each  payment  at  the  time  of  making  the  same  ;  and  to  pay  all 
taxes  assessed  on  said  premises  during  the  continuance  of  this  contract. 

And  the  said  party  of  the  first  part  also  agrees  that  on  receiving  the 
said  sum  of  eight  hundred  dollars  at  the  time,  and  in  the  manner  above 
mentioned,  he  will  execute  and  deliver  to  the  said  party  of  the  second 
part,  at  his  own  proper  cost  and  expense,  a  good  and  sufficient  deed, 


PART  5.]  BONDS.  417 

Condition  of  Bond  for  Payment  of  Money  at  different  times. 

The  condition  of  this  obligation  is  such  that  if  the  above  bound  A. 
B.,  his  heirs,  executors  or  administrators,  shall  well  and  truly  pay,  or 
cause  to  be  paid,  unto  the  said  C.  D.,  his  executors,  administrators  or 
assigns,  the  sum  of  two  thousand  dollars,  in  manner  following,  to  wit  : 
Jive  hundred  dollars  on  the  first  day  of  January  next,  five  hundred 
dollars  on  \\\Q  first  day  of  March  next  ensuing,  five  hundred  dollars  on 
the  first  day  of  July,  A.  D.  1856,  and  five  hundred  dollars  on  the 
first  day  of  January,  A.  D.  1857,  then  this  obligation  to  be  void  ;  but 
if  default  be  made  in  the  payment  of  either  of  the  said  sums  on  the 
day  specified  for  the  payment  of  each,  then  this  bond  shall  be  and  re- 
main in  full  force  and  effect. 

Signed  and  sealed  in  presence  of )  A     T>      r 

A.  B.     [SEAL.] 


Condition  of  Bond  for  Conveyance  of  Real  Estate. 

The  condition  of  this  obligation  is  such,  that  whereas  the  said  A.  B. 
has  this  day  sold  unto  the  said  C.  D.,  (here  describe  the  land,)  for  the 
sum  of  three  thousand  dollars,  one  third  part  of  which  sum  the  said 
C.  D.  has  paid  unto  the  said  A.  B.  in  hand,  and  for  the  remainder 
thereof  has  given  two  promissory  notes,  bearing  even  date  with  these 
presents,  for  the  sum  of  one  thousand  dollars  each,  signed  by  the  said 
C.  D.,  and  payable  to  the  said  A.  B.  or  order,  one  on  \hefirst  day  of 
January,  A.  D.  1856,  and  one  on  the  first  day  of  January,  A.  D. 
1857,  each  bearing  six  per  cent,  interest:  Now  if  the  said  A.  B., 
upon  the  payment  of  the  said  notes  on  the  day  specified  and  appointed 
in  each  for  the  payment  thereof,  by  the  said  C.  D.,  shall  make,  execute 
and  deliver  unto  the  said  C.  D.,  or  his  assigns,  a  warranty  deed  of  the 
said  premises,  containing  the  usual  covenants,  then  this  obligation  is  to 
be  void,  otherwise  to  be  and  remain  in  full  force  and  effect. 

Signed  and  sealed  in  presence  of)  A     w      r 

A.     15.       ^SLAL.J 


26 


418  COPARTNERSHIP.  [PART  5. 

VIII.   COPARTNERSHIP. 

• 

Articles  of  Copartnership. 

ARTICLES  OF  AGREEMENT,  made  and  entered  into  this  first  day  of 
June,  A.  D.  1855,  by  and  between  A.  B.  and  C.  D.,  both  of  Wauke- 
6an,  in  the  county  of  Lake,  and  State  of  Illinois,  wituesseth : 

First,  The  said  parties  have  agreed,  and  by  these  presents  do  agree, 
to  become  partners  in  trade,  and  in  buying,  selling,  vending  and 
retailing  all  sorts  of  goods,  wares,  and  merchandise,  which  copartnership 
shall  continue  for  the  term  of  three  years  from  this  date.  And  the 
said  A.  B.  and  C.  D.  have  each  contributed  and  delivered,  as  his 
proportion  of  the  stock  in  trade,  the  sum  of  five  thousand  dollars,  to 
be  laid  out,  expended  and  employed  in  the  management  of  their  said 
business,  for  their  best  advantage  and  profit.  And  it  is  hereby  agreed 
between  the  said  parties,  that  [the  said  A.  B.  shall  immediately  proceed  • 
to  Philadelphia  for  the  purchase  and  forwarding  by  the  way  of  New 
Orleans,  a  suitable  quantity  of  dry  goods,  and  that  the  said  C.  D. 
shall  immediately  proceed  to  St.  Louis  and  New  Orleans  for  the  pur- 
chase and  forwarding  of  groceries  and  such  other  articles  of  stock  as 
may  be  most  advantageously  purchased  at  those  places,  each  party  to 
accomplish  the  business  thus  specified  as  soon  as  may  be.] 

Second,  The  said  parties  further  agree  to  and  with  each  other,  that 
neither  of  them  will,  during  the  term  of  copartnership  aforesaid,  exercise 
or  follow  the  business  herein  before  specified,  or  any  other  business,  to 
their  private  benefit  and  advantage  ;  but  shall  and  will,  at  all  times 
during  said  term,  if  they  shall  so  long  live,  devote  their  exclusive 
attention,  and  exercise  their  best  endeavors  in  every  possible  way  and 
manner,  to  promote  the  joint  interest,  benefit,  advantage  and  profit  of 
the  copartnership.  And  it  is  hereby  mutually  agreed,  that  all  the 
necessary  expenses  of  said  copartnership  business  shall  be  equally 
borne  and  paid  by  said  parties  ;  that  all  the  gain,  profit,  and  increase 
arising  from  said  business  shall  be  equally  divided  between  the  said 
parties ;  and  that  all  losses  that  may  arise  in  said  joint  trade,  by  reason 
of  bad  debts,  ill  commodities,  or  otherwise,  not  chargeable  to  the  negli- 
gence or  inattention  of  either  party,  shall  be  borne  and  paid  equally 
between  them. 

Third,  It  is  mutually  agreed  by  the  said  parties,  that  there  shall  be 
kept  from  time  to  time,  and  at  all  times  during  said  term,  perfect,  just, 
true  and  propar  books  of  account,  wherein  each  of  said  parties  shall 


PAKT  5.]  COPARTXEMBI*.  410 

duly  enter  and  set  down  as  well  all  moneys  by  him  received,  paid, 
expended  and  laid  out,  in  and  about  the  management  of  said  baaineag, 
or  to  either  of  themselves,  or  for  their  private  account,  as  also  all 
goods,  wares  or  merchandise,  either  of  them  may  desire  for  their 
individual  benefit,  and  all  other  matters  and  things  whatsoever,  to  the 
said  joint  business  and  management  thereof  in  any  wise  belonging  or 
appertaining,  which  said  books  shall  be  used  in  common  by  said  parties, 
ao  that  either  of  them  may  have  free  access  thereto. 

F  "rth,  It  is  further  mutually  agreed  by  the  said  parties,  that  they 
will,  as  often  as  once  in  three  months,  make,  yield  and  render,  each  with 
the  other,  a  true,  just  and  perfect  account  of  all  profit  and  increase 
by  them,  or  either  of  them,  made,  and  of  all  losses  by  them,  or  either  of 
them,  sustained,  and  also  of  all  payments,  receipts  and  disbursements 
whatsoever,  by  them,  or  either  of  them,  made  or  received,  and  of  all 
other  things,  by  them,  or  either  of  them,  acted,  done  or  suffered  in 
their  said  joint  business ;  and  the  same  account  being  so  made,  shall 
and  will  clear,  adjust,  pay  and  deliver,  each  unto  the  other,  at  the 
time  of  making  such  account,  their  equal  shares  of  the  profits  BO  Bade 
as  aforesaid ;  and  at  the  end  of  said  term,  or  sooner,  should  the  partial 
so  determine,  they  will  make  a  true  and  just  account  of  all  things  as 
aforesaid,  and  divide  the  profits  aforesaid,  and  in  all  things  well  and 
truly  adjust  the  same ;  and  upon  such  settlement  and  adjustment,  all 
and  every  the  stock  and  stocks,  as  well  as  the  gain  and  increase  thereof 
which  shall  appear  to  be  remaining,  whether  consisting  of  money,  debts, 
goods,  wares  or  merchandise,  shall  be  equally  divided  between  the 
said  parties. 

Neither  of  said  parties  shall  sell  on  credit  any  goods,  wares, 
or  merchandise  of  the  said  joint  stock  to  any  person  or  persons,  agamat 
the  express  wish  or  consent  of  the  other,  verbally  or  in  writing ;  or 
release  or  compound  any  debt  or  demand  due  or  coming  to  them  OB 
account  of  said  joint  business,  without  the  consent  of  the  other ;  or  use 
his  own  or  the  copartnership  name,  without  die  consent  of  the  other, 
as  promisor,  obligor,  covenantor,  indorser.  drawer  or  acceptor,  or  as 
bail  or  surety  in  any  way  in  any  transaction,  wherein  the  said  firm, 
or  either  of  them,  are  not  interested  on  their  partnership  or  individual 
account ;  nor  shall  either  of  the  said  parties,  without  the  consent  of 
the  other,  in  writing  first  had  and  obtained,  sell  or  assign  his  share 
or  interest  in  the  said  joint  trade  and  business,  to  any  person  or  persona 
whatsoever. 

In  testimony  whereof,  the  said  parties  hav  .nd  one  other 


420  COPARTNERSHIP.  [PART  5- 

instrument  of  the  same  tenor  and  date,  interchangeably  set  their  hands 
and  seals,  the  day  and  year  first  above  written. 

Signed  and  sealed  in       )  A.  B.     [SKAL.] 

presence  of  j  C.  D.     [SEAL.] 

Agreement  to  continue  a  Partnership  by  Indorsement  thereon. 

It  is  hereby  agreed  and  understood  between  the  within  mentioned 
parties,  that  their  joint  trade,  as  specified  within,  shall  be  continued  for 
a  further  term  of  two  years  on  the  same  terms,  and  subject  to  the 
same  restrictions  and  requirements  as  within  specified  and  expressed. 

Witness  our  hands  and  seals,  this  first  day  of  August,  A.  D.  1855. 

Signed  and  sealed  in      1  A.  B.  [SEAL.] 

presence  of  j  C.  D.  [SEAL.] 

Agreement  for  a  Law  Partnership. 

ARTICLES  OF  AGREEMENT,  made  and  entered  into  this  first  day  of 
June,  A.  D.  1855,  by  and  between  A.  B.  and  C.  D.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  witnesseth : 

That  the  said  parties  have  this  day  mutually  agreed  to  enter  into, 
and  do  hereby  enter  into,  a  copartnership,  under  the  name  and  style 
of  B.  &  D.,  in  the  practice  of  Law  generally,  and  particularly  in  the 
circuit  and  district  courts  of  the  United  States,  and  the  supreme  and 
circuit  courts  of  the  State  of  Illinois  ;  and  that  their  office  shall  be  at 
Waukegan,  aforesaid. 

And  the  said  parties  do  hereby  mutually  agree,  that  they  will  give 
their  sole  and  undivided  attention  to  the  business  of  their  profession, 
and  constant  attendance  at  their  said  office,  when  not  necessarily  called 
elsewhere  on  professional  business,  or  absent  for  any  stated  time  by 
consent  of  the  other  ;  that  they  will  incur  no  liabilities  in  the  name  of 
said  firm,  or  obtain  any  credit,  unless  when  necessary  so  to  do,  in  the 
business  of  said  firm. 

And  it  is  further  mutually  agreed  by  the  said  parties,  that  they  will 
jointly  investigate,  prepare  and  argue  all  causes  in  which  they  may 
be  engaged,  whensoever  the  same  may  be  necessary,  and  will  equally 
share  all  the  profits  and  expenses  incident  to  said  business. 

And  it  hereby  further  agreed,  that  this  copartnership  shall  continue 
for  the  term  of  three  years,  from  the  date  hereof,  unless  sooner  termin- 
ated by  mutual  consent. 

In  witness  whereof,  &c. 


PART  5.]  COPARTNERSHIP.  421 

Agreement  to  Dissolve  a  Copartnership. 

ARTICLES  OF  AGREEMENT,  made  and  entered  into  this  first  day  of 
June,  A.  D.  1855,  by  and  between  A.  B.  and  C.  D.,  now  partners  in 
trade  in  the  city  of  Waukegan,  in  the  county  of  Lake  and  State  of 
Illinois,  witnesseth : 

That  whereas  the  said  partners,  on  the  first  day  of  June,  A.  D.  1852, 
by  articles  of  agreement  of  that  date,  entered  into  a  copartnership  in 
trade,  which  has  continued  until  the  present  time,  and  the  said  parties 
being  desirous  that  the  same  should  cease  on  the  thirty-first  instant,  it 
is  hereby  mutually  agreed  and  understood  that  said,  copartnership  do 
expire,  by  limitation,  on  the  thirty-first  day  of  June  instant ;  that  the 
said  parties  will  give  public  notice  of  such  intention  in  the  newspapers 
of  said  city,  requiring  all  persons  indebted  to  make  immediate  settle- 
ment, by  note  or  otherwise,  and  requesting  all  persons  having  claims 
to  present  them  for  settlement ;  that  the  stock  now  on  hand  be  adver- 
tised and  sold  at  retail,  at  prime  cost  for  cash,  and  whatever  may  remain 
on  said  thirty-first  day  of  June,  shall  be  sold  at  public  auction  to  the 
highest  bidder,  on  such  terms  as  these  parties  may  then  and  there  de- 
termine ;  that  the  said  A.  B.  shall,  immediately  after  such  sale,  proceed 
to  the  settlement  of  all  claims  due  to  and  from  said  firm,  and  for 
that  purpose,  and  that  only,  is  hereby  empowered  to  use  the  name  of 
said  firm,  whenever  it  may  be  necessary  to  institute  suits  at  law,  or  in 
equity  ;  and  finally,  after  such  settlement,  or  within  six  months  from  the 
date  hereof,  the  said  A.  B.  and  C.  D.  will  equally  divide  the  assets  of 
,<aiil  firm  remaining  on  hand. 

In  witness  whereof,  &c.,  (as  in  articles  of  copartnership.) 

Agreement  for  a  Limited  Law  Partnership. 

ARTICLES  OF  AGREEMENT,  made  and  entered  into  this  first  day  of 
June,  A.  D.  1855,  by  and  between  A.  B.  of  Waukegan,  in  the  county 
of  Lake  and  State  of  Illinois,  and  C.  D.,  of  the  city  of  Chicago,  in 
the  county  of  Cook  and  State  aforesaid,  witnesseth  : 

That  the  said  parties  hereby  agree  to  enter  into  a  law  partnership  in 
the  business  of  the  circuit  court  of  said  county  of  Lake,  for  the  tcnn 
of  three  years  from  this  date,  upon  the  terms  and  conditions  hereinafter 
expressed. 

And  the  said  A.  B.,  on  his  part,  hereby  agrees  with  the  said  C.  D., 
that  he  will  regularly  attend  the  circuit  court  of  said  county  of  I^dke, 


422  CONVEYANCES.  [PART  5. 

and  will  argue,  when  required  by  said  C.  D.,  all  questions  of  law  or 
fact  which  may  arise  in  any  suit  commenced  by  the  said  C.  D.,  or  which 
he  may  be  employed  to  defend,  and  should  any  such  suit  be  carried  to 
the  supreme  court  of  said  State  by  appeal  or  writ  of  error,  then  and 
there  to  manage,  according  to  the  best  of  his  abilities,  all  such  suits. 

And  the  said  C.  D.,  in  consideration  of  the  agreements  of  the  said 
A.  B.,  on  his  part,  hereby  agrees  that  in  all  suits  which  he  may  com- 
mence in  said  county  of  Lake,  or  which  he  may  be  employed  to  defend, 
he  will  cause  all  due  preparation  to  be  made  bj  the  summoning  of  the 
necessary  witnesses,  and  the  examination  of  such  legal  authorities  hav- 
ing a  bearing  upon  the  question  at  issue,  as  may  be  within  his  reach, 
and  prepare  a  brief  of  the  same  for  the  use  of  said  A.  B.  And  he 
hereby  further  agrees,  for  the  consideration  aforesaid,  that  he  will  collect 
and  pay  over  to  the  said  A.  B.,  one  half  of  all  the  fees  accruing  in 
such  litigated  suits,  in  said  circuit  court,  and  all  fees  accruing  by  reason 
of  any  such  suit  being  carried  to  the  supreme  court ;  and  that  in  the 
collection  and  payment  of  such  fees,  he  will  use  all  due  diligence. 

In  testimony,  &c. 


IX.    CONVEYANCES. 

Warranty  Deed. 

THIS  INDENTURE,  made  this  first  day  of  October,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  fifty-five,  between  A.  B.  and 
C.  B.  his  wife,  of  the  county  of  Cook  and  State  of  Illinois,  of  the 
first  part,  and  E.  F.,  of  the  county  and  State  aforesaid,  party  of  the 
second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in  consideration  of  the 
sum  of  one  thousand  dollars  in  hand  paid -by  the  said  party  of  the 
second  part,  the  receipt  whereof  is  hereby  acknowledged,  and  the  said 
party  of  the  second  part  forever  released  and  discharged  therefrom,  have 
granted,  bargained,  sold,  remised,  released,  aliened  and  confirmed,  and 
by  these  presents  do  grant,  bargain,  sell,  remise,  release,  alien  and  con- 
firm, unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  .assigns 
forever,  all  of  the  following  described  premises,  situate,  lying  and  being 
in  the  county  of  Cook  and  State  of  Illinois,  (here  describe  tltc. 
premises.) 

Together  with  all  and  singular  the  hereditaments  and  appurtenances 


PART  5.  CONVEYANCES.  423 

thereunto  belonging,  or  in  any  wise  appertaining ;  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues  and  profits 
thereof;  and  all  the  estate,  right,  title,  interest,  claim  or  demand  what- 
soever of  the  said  party  of  the  first  part,  either  in  law  or  equity,  of,  in 
and  to  the  above  bargained  premises,  with  the  hereditaments  and  appur- 
tenances ;  to  have  and  to  hold  the  said  premises,  above  bargained  and 
described,  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever.  And  the  said  A.  B.,  for  himself, 
his  heirs,  executors  and  administrators,  doth  covenant,  bargain  and 
agree,  to  and  with  the  said  party  of  the  second  part,  his  heirs  and  as- 
signs, that  at  the  time  of  the  ensealing  and  delivery  of  these  presents, 
the  said  A.  B.  and  C.  B.  are  well  seized  of  the  premises  above  con- 
veyed, as  of  a  good,  sure,  perfect,  absolute  and  indefeasible  state  of 
inheritance  in  the  law  in  fee  simple,  and  have  good  right,  full  power 
and  lawful  authority  to  grant,  bargain,  sell  and  convey  the  same  in  man- 
ner and  form  aforesaid ;  and  that  the  same  are  free  and  clear  of  all 
former  and  other  grants,  bargains,  sales,  liens,  judgments,  taxes,  assess- 
ments and  encumbrances  of  what  kind  or  nature  soever  ;  and  the  above 
bargained  premises,  in  the  quiet  and  peaceable  possession  of  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  against  all  and  every 
person  or  persons  lawfully  claiming  or  to  claim  the  whole  or  any  part 
thereof,  shall  and  will  warrant  and  forever  defend. 

In  witness  whereof,  the  said  party  of  the  first  part  have  hereunto  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in      |  A.  B.     [SEAL.] 

presence  of  j  C.  B.     [SEAL.] 

Quit  Claim  Deed. 

Tins  INDENTURE,  made  this  first  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-five,  between  A.  B.  and 
C.  B.  his  wife,  of  the  county  of  Lake  and  State  of  Illinois,  party  of 
the  first  part,  and  E.  F.,  of  the  said  county  and  State,  party  of  the 
second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in  consideration  of  one 
dollar  in  hand  paid  by  the  said  party  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  and  tho  said  party  of  the  second  part 
forever  released  and  discharged  therefrom,  have  remised,  released,  con- 
veyed and  quit-claimed,  and  by  these  presents  do  remise,  release,  con- 
vey and  quit-claim  unto  the  said  party  of  the  second  part,  his  heirs  and 


424  CONVEYANCES.  [PART  5. 

assigns  forever,  all  the  right,  title,  interest,  claim  and  demand,  which 
the  said  party  of  the  first  part  have  in  and  to  the  following  described 
lot,  piece  or  parcel  of  land,  to  wit :  (Jiere  describe  the  premises.) 

To  have  and  to  hold  the  same,  together  with  all  and  singular  the 
appurtenances  and  privileges  thereunto  belonging,  or  in  any  wise  apper- 
taining, and  all  the  estate,  right,  title,  interest  and  claim  whatever,  of 
the  said  party  of  the  first  part,  either  in  law  or  equity,  to  the  onlj 
proper  use,  benefit  and  behoof  of  the  said  party  of  the  second  part,  his 
heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  hereunto  set  their 
hands  and  seals,  the  day  and  year  first  above  written. 

Signed,  sealed  and  delivered      }  A.  B.     [SEAL.] 

in  presence  of  C.  B.     [SEAL.] 


Deed  of  Gift  of  Real  Estate. 

KNOW  ALL  MEX  BY  THESE  PRESENTS,  That  I,  N.  E.,  of  Waukegan, 
in  the  county  of  Lake  and  State  of  Illinois,  for  and  in  consideration  of 
the  natural  love  and  affection  which  I  bear  to  my  son,  N.  W.  E.,  and 
also  in  consideration  of  the  sum  of  one  dollar  to  me  paid  by  my  said 
son,  at  and  before  the  ensealing  and  delivery  hereof,  the  receipt  whereof 
I  do  hereby  acknowledge,  have  given,  granted,  aliened,  released  and 
confirmed,  and  by  these  presents  do  give,  grant,  alien,  release,  and  con- 
firm unto  the  said  N.  W.  E.,  his  heirs  and  assigns,  the  following  de- 
scribed tract  or  parcel  of  land,  to  wit :  (describe  the  land)  •  together 
with  all  the  buildings  thereon  standing. 

To  have  and  to  hold  the  said  above  granted  premises  and  all  the 
appurtenances  thereunto  belonging,  to  him,  the  said  N.  W.  E.,  his  heirs 
and  assigns,  to  his  and  their  proper  use  and  behoof  forever.  And  the 
said  N.  E.  doth  covenant  with  the  said  N.  W.  E.,  his  heirs  and  assigns, 
that  he  is  lawfully  seized  in  fee  of  the  aforegranted  premises  ;  that  they 
are  free  from  all  encumbrances  ;  that  he  has  good  right  to  convey  the 
same  to  the  said  N.  W.  E.,  and  that  he  will  warrant  and  defend  the 
same  to  the  said  N.  W.  E.,  his  heirs  and  assigns  forever,  against  the 
lawful  claims  and  demands  of  all  persons. 

In  witness  whereof,  I,  the  said  N.  E.,  have  hereunto  set  my  hand  and 
seal,  this  f-rst  day  of  July,  A.  D.  1855. 

Signed,  sealed  and  delivered  in      )  N.  E.      [SEAL.] 

presence  of 


PAKT  5.]  CONVEYANCES.  425 

Mortgage. 

THIS  INDENTURE,  made  this  third  day  of  October,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-jive,  between  A.  B.,  of  the 
county  of  Lake  and  State  of  Illinois,  of  the  first  part,  and  C.  D.,  of 
the  said  county  and  State,  party  of  the  second  part.  Whereas,  the  said 
party  of  the  first  part  is  justly  indebted  to  the  said  party  of  the  second 

part,  in  the  sum  of dollars,  secured  to  be  paid   by  a  certain 

promissory  note,  {describe  the  note,  or  other  instrument.} 

Now,  therefore,  this  indenture  witnesseth,  that  the  said  party  of  the 
first  part,  for  the  better  securing  the  payment  of  the  money  aforesaid, 
with  interest  thereon,  according  to  the  tenor  and  effect  of  the  said 
{promissory  note)  above  mentioned  ;  and  also,  in  consideration  of  the 
further  sum  of  one  dollar  to  him  in  hand  paid  by  the  said  party  of  the 
second  part,  at  the  delivery  of  these  presents,  the  receipt  whereof  is 
hereby  acknowledged,  hath  granted,  bargained,  sold,  remised,  aliened 
and  conveyed,  and  by  these  presents  doth  grant,  bargain,  sell,  remise, 
alien  and  convey  unto  the  said  party  of  the  second  part,  and  to  his 
heirs  and  assigns  forever,  all  (here  describe  the  premises.) 

To  have  and  to  hold  the  same,  together  with  all  and  singular  the  ten- 
ements, hereditaments  and  appurtenances  thereunto  belonging,  or  in 
any  wise  appertaining,  with  the  rents,  issues  and  profits  thereof;  and 
also,  all  the  estate,  interest  and  claim  whatsoever,  in  law  or  equity, 
which  the  party  of  the  first  part  hath  in  and  to  the  premises  hereby  con- 
veyed unto  the  said  party  of  the  second  part,  his  heirs,  executors,  ad- 
ministrators, or  assigns,  and  to  their  only  proper  use,  benefit  and 
behoof  forever ;  provided  always,  and  these  presents  are  upon  this 
express  condition,  that  if  the  said  party  of  the  first  part,  his  heirs, 
executors,  administrators  or  assigns,  shall  well  and  truly  pay,  or  cause 
to  be  paid,  to  the  said  party  of  the  second  part,  his  heirs,  executors, 
and  administrators  or  assigns,  the  aforesaid  sum  of  money,  with  such 
interest  thereon,  at  the  time  and  in  the  manner  specified  in  the  above 
mentioned  (promissory  note,)  according  to  the  true  intent  and  mean- 
ing thereof,  that  then  and  in  that  case,  these  presents,  and  everything 
herein  expressed,  shall  be  absolutely  null  and  void. 

In  witness  whereof,  the  said  party  of  the  first  part  hereunto  sets  bis 
hand  and  seal  the  day  and  year  first  above  written. 

Signed,  sealed  and  delivered       )  A.  B.     [SEAL.] 

in  presence  of 


426  LEASES.  [PART  5, 

X.  LEASES. 
Usual  Form  of  Lease. 

THIS  INDENTURE,  made  tins  first  day  of  July,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-jive,  between  A.  B.,  of  Wauke- 
gan,  in  the  county  of  Lake,  and  State  of  Illinois,  and  C.  I),  of  the  same 
place,  witnesseth  : 

That  the  said  A.  B.  doth  hereby  demise  and  lease  unto  the  said  C.  D. 
all  that  (here  describe  tne  land)  •  to  hold  for  the  term  of  two  years  from 
the  date  hereof;  yielding  and  paying  therefor  yearly,  on  every  first  day 
of  April,  July,  October,  and  January,  during  the  said  term,  unto  the 
said  A.  B.,  or  his  assigns,  the  yearly  rent  of  one  hundred  dollars,  in 
four  equal  payments  of  twenty-five  dollars  each. 

And  the  said  C.  D.  covenants  and  agrees  to  pay  the  said  rent  in 
manner  aforesaid,  and  to  deliver  up  the  premises  to  the  said  A.  B.,  or 
his  attorney,  peaceably  and  quietly  at  the  end  of  said  term,  in  as  good 
condition  as  the  same  now  are  or  may  be  put  into  by  the  said  A.  B., 
reasonable  wear  and  tear  thereof,  and  fire  and  other  casualties  excepted ; 
and  to  pay  all  taxes  and  duties  lawfully  levied  and  imposed  on  the  pre- 
mises demised,  except  for  making  or  repairing  sidewalks,  or  grading 
of  any  description  during  the  said  term  ;  and  the  said  lessee  further  cov- 
enants, that  he  will  not  do,  or  suffer  any  waste  in  the  demised  premises ; 
that  he  will  not  underlet  the  same  or  any  part  thereef,  nor  permit  any  other 
person  or  persons  to  occupy  the  same  or  any  part  thereof ;  nor  make  or 
suffer  to  be  made,  any  alteration  therein  without  the  consent  of  the  said 
A.  B.,  or  his  assigns,  for  that  purpose  in  writing,  first  had  and  obtained ; 
and  the  said  lessee  further  covenants  that  the  said  A.  B.,  or  his  attor- 
ney, or  agent,  may  enter  the  premises  for  the  purpose  of  reviewing  or 
making  improvements  at  reasonable  times,  in  the  day  time,  (other  cov- 
enants may  be  introduced  according  to  circumstances.^) 

In  witness  whereof,  the  said  parties  have  to  this  and  one  other  instru- 
ment of  the  same  tenor  and  date,  interchangeably  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

Signed  and  sealed      )  A.  B.    [SEAL.] 


\ 


in  presence  of        )  C.  D.     [SEAL.] 


PART  5,]  LEASES.  427 

Another  Form  of  Lease. 

Tins  INDENTURE,  made  this  first  day  of  July,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-Jive,  between  A.  B.,  of  Wauke- 
gan,  in  the  county  of  Lake,  and  State  of  Illinois,  and  C.  D.  of  Avon, 
in  the  same  county,  witnesseth  : 

That  the  said  A.  B.,  for  and  in  consideration  of  the  yearly  rents  and 
covenants  hereinafter  mentioned  and  reserved,  on  the  part  and  behalf  of 
the  said  C.  D.,  his  executors,  administrators,  and  assigns,  to  be  paid, 
kept  and  performed,  hath  demised,  set,  and  to  farm  let,  unto  the  said 
C.  D.,  his  executors,  administrators  and  assigns,  all  that  [messuage  and 
lot  of  land  situated,  lying  .and  being  in  said  county  of  Lake,  being 
known  and  described  as  the  north-west  quarter  of  section  four  (4)  in 
township  one  (1)  north  of  the  base  line,  and.  range  nine  (9)  west  of 
the  fourth  principal  meridian,  containing  one  hundred  and  sixty  acres, 
be  the  same  more  or  less  ;]  to  have  and  to  hold  the  said  messuage  and 
lot  of  land,  and  all  and  singular  the  premises  hereby  demised,  with  the 
appurtenances,  unto  the  said  C.  D.,  his  executors,  administrators  and 
assigns,  from  the  first  day  of  May  next  ensuing  the  date  hereof,  for 
and  during  the  term  of  three  years  then  next  .ensuing,  and  fully  to  be 
complete  and  ended,  yielding  and  paying  for  the  same  unto  the  said  A. 
B.,  his  executors,  administrators,  and  assigns,  the  yearly  rent  of  one 
hundred  dollars  in  equal  semi-annual  payments  of  fifty  dollars  each, 
the  first  of  which  to  be  made  on  the^rs^  day  of  November  next. 

And  the  said  C.  D.  for  himself,  his  heirs,  executors,  and  administra- 
tors, doth  covenant,  promise  and  agree  to  and  with  the  said  A.  B.,  his 
heirs,  executors,  administrators  and  assigns,  by  these  presents,  that  he, 
the  said  C.  D.,  his  heirs,  executors  and  administrators,  or  some  of  them, 
shall  and  will  well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said  A. 
B.,  his  heirs,  executors,  administrators  or  assigns,  the  said  yearly  rent 
of  one  hundred  dollars  hereby  reserved,  on  the  several  days  and  times 
herein  before  mentioned  and  appointed  for  the  payment  thereof,  accord- 
ing to  the  true  intent  and  meaning  of  these  presents. 

And  the  said  A.  B.,  for  himself,  his  heirs,  executors,  and  adminis- 
trators, doth  covenant,  promise,  grant  and  agree  to  and  with  the  said 
C.  D.,  his  executors,  administrators  and  assigns,  by  these  presents, 
that  he,  the  said  C.  D.,  his  executors,  administrators  and  assigns, 
(paying  the  rent  and  performing  the  covenants  aforesaid,)  shall  and 
lawfully  may,  peaceably  and  quietly,  have,  hold,  use,  occupy,  possess 
and  enjoy  the  said  demised  premises  with  the  appurtenances,  during  the 


428  LEASES.  [PART  5. 

term  aforesaid,  without  the  lawful  let,  suit,  trouble,  eviction,  molestation 
or  interruption  of  the  said  A.  B.,  his  heirs  or  assigns,  or  any  other  per- 
son or  persons  whatsoever. 

In  witness  whereof,  the  said  parties  have  to  this  and  one  other  instru- 
ment of  the  same  tenor  and  date,  interchangeably  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

Signed  and  sealed  in  }  A.  B.     [SEAL.] 

presence  of  C.  D.      [SKAL.] 


A  Short  Form  of  Lease. 

THIS  INDENTURE,  made  this  first  day  of  June,  A.  D.  1855,  between 
A.  B.,  of  Waukegan,  in  the  county  of  Lake,  and  State  of  Illinois,  of 
the  one  part,  and  C.  D.  of  the  same  place,  of  the  other  part,  wit- 
nesseth : 

That  the  said  A.  B.  for  the  consideration  hereinafter  expressed,  hath 
demised,  granted  and  leased,  and  by  these  presents  doth  hereby  demise, 
grant  and  lease  unto  the  said  C.  D.,  and  his  assigns,  (here  describe  the 
premises,)  together  with  all  the  privileges  and  appurtenances  thereunto 
belonging. 

To  have  and  to  hold  the  above  described  premises  for  and  diiring  the 
term  of  two  years  from  the  date  hereof. 

And  the  said  C.  D.  doth  covenant  and  agree  to  pay  unto  the  said  A. 
B.,  or  his  assigns,  the  sum  of  one  hundred  dollars  as  yearly  rent  for  said 
premises,  in  two  equal  payments  of  fifty  dollars  each,  at  the  expiration 
of  each  and  every  six  months  from  date,  during  the  continuance  of  this 
lease. 

In  witness  whereof,  the  said  parties  have  to  this  and  one  other  instru- 
ment of  the  same  tenor  and  date,  interchangeably  set  their  hands  and 
seals  the  day  and  year  first  above  written. 

Signed  and  sealed  in  the      }  A.  B.     [SEAL.] 

presence  of  C.D.     [SEAL.] 


PART  5.]  POWERS  OF  ATTORNEY.  429 

X.     POWERS  OF  ATTORNEY. 
General  form  of  Letters  of  Attorney. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  I,  A.  B.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  have  made,  constituted, 
and  appointed,  and  by  these  presents  do  make,  constitute  and  appoint 
C.  D.,  of  the  same  place,  to  be  my  true  and  lawful  attorney,  for  me, 
and  in  my  name,  and  for  my  sole  use,  to  (here  state  the  specific  pur- 
poses of  the  power,  in  as  concise  terms  as  possible,^)  hereby  giving 
and  granting  unto  my  said  attorney,  full  power  and  authority  in  the 
premises,  to  use  all  lawful  means  in  my  name,  and  for  my  sole  benefit 
for  the  purposes  aforesaid.  And  generally  to  do  and  perform  all  such 
acts,  matters  and  things,  as  my  said  attorney  shall  deem  necessary  or 
expedient  for  the  completion  of  the  authority  hereby  given,  as  fully 
as  I  might  and  could  do,  if  I  were  personally  present ;  and  finally, 
hereby  ratifying  and  confirming  all  the  acts  of  my  said  attorney  or  his 
substitutes,  done  by  virtue  of  these  presents. 

In  witness  whereof,  I,  the  said  A.  B.,  have  hereunto  set  my  hand 
and  seal,  this  first  day  of  June,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-five. 

Signed  and  sealed  in       ]  A.  B.     [SEAL.] 

presence  of 

Letter  of  Substitution  appended  to  Power  of  Attorney. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  I,  C.  D.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  named  in  the  letter  of 
attorney  above  mentioned,  have  made,  appointed,  and  substituted,  and 
and  by  these  presents  do  make,  appoint-  and  substitute,  E.  F.,  of  said 
Waukegan,  to  be  the  true  and  lawful  attorney  of  the  said  A.  B.,  in 
the  above  letter  of  attorney  named,  to  do  and  perform  all  such  acts, 
matters  and  things,  as  he  may  deem  necessary  or  expedient  for  the 
complete  execution  of  the  authority  therein  given,  as  fully  in  all 
respects  and  to  all  intents  and  purposes,  as  I  myself  might  and  could 
do,  by  virtue  of  the  power  and  authority  therein  delegated,  if  I  were 
personally  present. 

Hereby  ratifying  and  confirming 'all  the  acts  of  my  said  substitute, 
done  by  virtue  of  these  presents 

In  witness  whereof,  I,  the  said  C.  D.,  have  hereunto  set  my  hand 


430  POWERS    OF   ATTORNEY.  [PART  5. 

and  seal,   the  first  day  of  October,  in  the  year  of  our  Lord   one 
thousand  eight  hundred  and  fifty-jive. 

Signed  and  sealed  in  presence  of  \  C.  D.     [SEAL.] 


General  Letter  of  Attorney  to  collect  Debts. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  I,  A.  B.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  have  made,  constituted 
and  appointed,  and  by  these  presents  do  make,  constitute  and  appoint 
C.  D.,  my  true  and  lawful  attorney,  for  me,  and  in  my  name,  and  to 
my  use  to  ask,  demand,  sue  for,  recover  and  receive  of  E.  F.,  and  of 
all  and  every  person  and  persons  whomsoever  indebted  to  me  by  note, 
account,  or  otherwise,  all  and  every  such  sum  and  sums  of  money, 
debts  and  demands  whatsoever,  as  now  are  due  and  owing  unto  me, 
the  said  A.  B.,  from  them  or  either  of  them.  And  in  default  of 
payment  thereof  by  them,  or  either  of  them,  to  have,  use,  and  take, 
all  lawful  ways  and  means  in  my  name,  or  otherwise,  for  the  recovery 
thereof,  by  attachment,  arrest,  or  otherwise,  and  to  compound  or  agree 
for  the  same  ;  and  on  receipt  thereof,  acquittances,  or  other  sufficient 
discharges  for  the  same  for  me,  and  in  my  name  to  make,  seal  and 
deliver  ;  and  generally  to  do  all  lawful  acts  and  things  whatsoever, 
concerning  the  premises,  as  fully,  in  every  respect,  as  I  myself  might 
or  could  do,  if  I  were  personally  present  ;  and  an  attorney  or  attor- 
neys under  him,  for  the  purposes  aforesaid,  to  make,  and  at  his  pleasure 
to  revoke. 

Hereby  ratifying,  allowing  and  confirming  all  and  whatsoever  my 
said  attorney  shall,  in  my  name,  lawfully  do,  or  cause  to  be  done,  in 
and  about  the  premises. 

In  ^Tftiess  whereof,  I,  the  said  A.  B.,  have  hereunto  set  my  hand 
and  "%eal,  this  first  day  of  June,  one  thousand  eight  hundred  and 
fifty-five. 

Signed  and  sealed  in  presence  of  ")  A.  B.     [SEAL.] 

<• 

Revocation  of  Letter  of  Attorney. 

To  ALL  PERSONS  to  whom  these  Presents  shall  come  :  A.  B.,  of 
Waukegan,  in  the  county  of  Lake,  and  State  of  Illinois,  sendeth 
Greeting  : 

Whereas,  I,  the  said  A.  B.,  by  my  letter  of  attorney,  bearing  date 
June  first,  1854,  did  make,  constitute  and  appoint  C.  D.  of  said  Wau- 


PART  5.]  POWERS  OF   ATTORNEY.  431 

kegan,  my  attorney  for  certain  purposes,  to  wit :  in  my  name  and  for 
my  use  to  collect  all  debts  due  and  owing  unto  me,  as  by  said  letter 
of  attorney  will  more  fully  appear : 

Know  ye,  that  I,  the  said  A.  B.,  for  divers  considerations  me  here- 
unto moving,  have  made  void,  countermanded  and  revoked,  and  do 
hereby  make  void,  countermand  and  revoke  the  said  letter  of.  attorney, 
and  all  and  singular  the  power  and  authority  therein  contained. 

In  witness  whereof,  I,  the  said  A.  B.,  have  hereunto  set  my  hand 
and  seal,  this  first  day  of  June,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-five. 

Signed  and  sealed  in  presence  of)  .      T>      r 

?•  -A..     _D«      |_SEAL.J 

Warrant  of  Attorney  to  Confess  Judgment  on  Note. 

WHEREAS  A.  B.  is  justly  indebted  unto  C.  D.,  in  the  sum  of  eighty- 
four  dollars  and  seventy-five  cents  with  interest,  by  note  hereunto  an- 
nexed, and  of  which  the  following  is  a  true  copy,  to  wit :  (here  copy 
the  note.) 

Now,  therefore,  know  all  men  by  these  presents,  that  I,  A.  B.,  of 
Waukegan,  in  the  county  of  Lake,  and  State  of  Illinois,  do  make, 
constitute  and  appoint  E.  P.  Ferry,  of  said  Waukegan,  attorney  and 
counsellor  at  law,  my  true  and  lawful  attorney,  in  my  name  and  behalf, 
at  the  next  term  of  the  circuit  court,  within  and  for  the  said  county  of 
Lake,  to  be  holden  at  said  Waukegan  on  the  second  Monday  of  Octo- 
ber next,  or  at  any  term  thereof  subsequently,  to  confess  a  judgment 
against  me,  and  in  favor  of  said  C.  D.,  for  the  amount  of  principal  and 
interest  which  shall  be  due  on  said  aforedescribed  note,  according  to 
the  tenor  and  effect  thereof  at  the  time  such  judgment  may  be  confessed. 

Hereby  waving  and  releasing  all  errors,  and  ratifying  and  confirming 
all  that  my  said  attorney  may  do  in  the  premises. 

In  witness  whereof,  I,  the  said  A.  B.,  have  hereunto  set  my  hand 
and  seal,  this  first  day  of  March,  one  thousand  eight  hundred  and 
fifty-five. 

Signed  and  sealed  in  presence  of )  .     -p      r   ,      -\ 

/•  2\..     -L>.       |^SEAL.J 

Short  form  of  Warrant  of  Attorney  to  Confess  Judgment  on  Note. 

I,  A.  B.,  do  hereby  authorize  and  empower  Isaac  L.  Clark,  or  any 
other  attorney  at  law  in  the  State  of  Illinois,  to  appear  in  the  circuit  court 


432  RELEASES.  [PART    5. 

of  Lake  county,  in  said  State,  at  any  regular  term  thereof,  and  waive  the 
issuing  and  service  of  process,  and  confess  a  judgment  against  me  and 
in  favor  of  C.  D.,  for  the  sum  of  eighty-four  dollars  and  seventy-jive 
cents,  the  same  being  the  amount  due  and  owing  on  a  note  hereunto  an- 
nexed, of  which  the  following  is  a  .true  copy,  to  wit :  (here  copy  the 
note,)  and  thereupon  to  release  all  error,  and  waive  all  right  and  benefit 
of  appeal  in  my  behalf. 

Dated  at  Waukegan,  this  second  day  of  June,  A.  D.  1855. 

A.  B.     [SEAL.] 


XII.     RELEASES. 

General  form  of  Release. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  A.  B.,  of  Waukegan, 
in  the  county  of  Lake,  and  State  of  Illinois,  for  and  in  consideration 
of  the  sum  of  one  dollar  to  me  paid  by  C.  D.,  of  the  same  place,  have 
remised,  released  and  forever  discharged,  and  by  these  presents  do  re- 
mise, release  and  forever  discharge  the  said  C.  D.  and  his  heirs,  exec- 
utors and  administrators,  of  and  from  all  and  all  manner  of  action  and 
actions,  cause  and  causes  of  action,  suits,  debts,  dues,  sum  and  sums 
of  money,  accounts,  reckonings,  bonds,  bills,  specialties,  covenants, 
contracts,  controversies,  agreements,  extents,  executions,  claims  and 
demands  whatsoever,  in  law  and  in  equity,  which  against  the  said  C. 
D.  I  ever  had,  now  have,  or  which  I,  my  executors  or  administrators, 
hereafter  can,  shall,  or  may  have,  for,  upon,  or  by  reason  of  any  mat- 
ter, cause  or  thing  whatsoever,  from  the  beginning  of  the  world  to  the 
date  of  these  presents. 

In  witness  whereof,  I,  the  said  A.  B.,  have  hereunto  set  my  hand 
and  seal,  this  second  day  of  July,  A.  D.  1855. 

Sealed  and  delivered  in  presence  of )  -n      r         -\ 

A.  B.     [SEAL.] 


PAKT  5.]  WILLS.  433 

Release  of  Trust  Deed. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  A.  B.,  of  the  county 
of  Lake  and  State  of  Illinois,  for  and  in  consideration  of  one  dollar, 
and  for  other  good  and  valuable  considerations,  the  receipt  whereof  is 
hereby  confessed,  do  hereby  grant,  bargain,  remise,  convey,  release 
and  quit-claim  unto  C.  D.,  of  the  county  of  Cook  and  State  of  Illinois, 
all  the  right,  title,  interest,  claim  or  demand  whatsoever,  I  may  have 
acquired  in,  through  or  by  a  certain  indenture  or  trust  deed,  bearing 
date  the  second  day  of  July,  A.  D.  eighteen  hundred  and  fifty-five,  and 

recorded  in  the  recorder's  office  of  Lake  county,  Illinois,  in  book , 

page ,  to  the  premises  therein  described,  and  which  said  deed  was 

made  to  secure  a  certain  promissory  note  bearing  even  date  with  said 
deed,  for  the  sum  of dollars  and cents. 

Witness  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

In  presence  of      )  A.  B.     [SEAL.] 

L.  M.  ; 


XIII.    WILLS. 

A  wiU  or  testament  is  the  legal  declaration  of  a  man's  intention  of 
what  he  wills  to  be  performed  after  his  death. 

Form  of  Witt  of  Real  and  Personal  Estate. 

In  the  name  of  God,  Amen  :  I,  A.  B.,  of  the  town  of ,  in  the 

county  of ,  and  State  of ,  of  the  age  of years,  and  being 

of  sound  mind  and  memory,   do  make,  publish  and  declare  this  my 
last  will  and  testament,  in  manner  following,  that  is  to  say : 

First.  I  give  and  bequeath  to  my  wife,  E.  B.,  the  sum  of ,  to 

be  accepted  and  received  by  her  in  lieu  of  dower  ;  to  my  son,  C.  B.,  the 

sum  of ;  to  my  daughter,   M.  B.,  the  sum  of ;  and  to 

my  daughter-in-law,  S.  B.,  widow  of  my  son,  R.  B.,  deceased,  the  sum 

of ;  which  said  several  legacies  or  sums  of  money  I  direct  and 

order  to  be  paid  to  the  said  respective  legatees,  within  one  year  after 
my  decease. 

Second.    I  give  and  devise  to  my  son,  C.  B.  aforesaid,  his  heirs  and 
assigns,  all  that  tract  or  parcel  of  land  situate,  &c.,  {describe  the  pre- 
11 

• 


434  WILLS.  PART  5.] 

mises,*)  together  with  all  the  hereditaments  and  appurtenances  there- 
unto belonging,  or  in  any  wise  appertaining ;  to  have  and  to  hold  the 
premises  above  described  to  the  said  C.  B.,  his  heirs  and  assigns  for- 
ever. 

Third.  I  give  and  devise  all  the  rest,  residue  and  remainder  of  my 
real  estate,  of  every  name  and  nature  whatsoever,  to  my  said  daughter, 
M.  B.,  and  my  said  daughter-in-law,  S.  B.,  to  be  divided  equally  be- 
tween them,  share  and  share  alike. 

And  lastly,  I  give  and  bequeath  all  the  rest,  residue  and  remainder 
of  my  personal  estate,  goods  and  chattels,  of  what  nature  or  kind 
soever,  to  my  wife,  E.  B.,  whom  I  hereby  appoint  sole  executrix  of 
this  my  last  will  and  testament,  hereby  revoking  all  former  wills  by 
me  made. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and . 

A.  B.     [SEAL.] 

The  above  instrument,  consisting  of  one  sheet,  (or  "two  sheets,") 
was,  at  the  date  thereof,  signed,  sealed,  published  and  declared  by  the 
said  A.  B.,  as  and  for  his  last  will  and  testament,  in  presence  of  us, 
who,  at  his  request  and  in  his  presence,  and  in  the  presence  of  each 
other,  have  subscribed  our  names  as  witnesses  thereto,  (or  "  the  above 
instrument  consisting  of  one  sheet,  was,  at  the  date  thereof,  declared  to 
us  by  A.  B.,  the  testator  therein  mentioned,  to  be  his  last  will  and  tes- 
tament ;  and  he  at  the  same  time  acknowledged  to  us,  and  each  of  us, 
that  he  had  signed  and  sealed  the  same,  and  we,  therefore,  at  his  re- 
quest, and  in  his  presence,  and  in  the  presence  of  each  other,  signed 
our  names  thereto  as  attesting  witnesses.") 

C.  D.,  residing  at — ,  in county. 

Gr.  H.,  residing  at ,  in county. 

Form  of  Codicil  to  a  Will. 

WHEREAS  I,  A.  B.,  of,  &c.,  have  made  my  last  will  and  testament 

in  writing,  bearing  date  the  day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  in  and  by  which  I  have 

given  and  bequeathed  to,  &c.,  (here  set  forth  the  bequest  which  the 
testator  desires  to  changed) 

Now  therefore,  I  do,  by  this  my  writing,  which  I  hereby  declare  to 
be  a  codicil  to  my  said  last  will  and  testament,  and  to  be  taken  as  a 


PAKT  5.]  WILLS.  435 

part  thereof,  order  and  declare  that  my  will  is,  that  only  the  sum  of 

be  paid  to  my  daughter-in-law,  S.  B.,  in  full  of  the  said  legacy; 

and  that  the  sum  of be  given  and  paid  to  my  nephew  K.  F. ; 

and  lastly,  it  is  my  desire  that  this  codicil  be  annexed  to,  and  made 
a  part  of,  my  kst  will  and  testament  as  aforesaid,  to  all  intents  and 
purposes. 

In  witness,  &c.,  (as  in  foregoing  form  of  will,  except  that  the 
attestion  will  read,  "  as  and  for  a  codicil  to  his  last  will,"  &c.) 

Nomination  of  JSxecutors  in  a  Witt. 

And  lastly,  I  do  hereby  nominate  and  appoint  my  sons,  C.  B.  and 
M.  B.,  (or,  "  my  friends,  E.  F.  and  L.  M.,")  to  be  the  executors  of 
this  my  last  will  and  testament,  hereby  revoking  all  former  wills  by 
me  made. 

Devise  to  Executors  in  Trust,  with  power  to  sell,  fyc. 

I  give  and  devise  all  my  real  and  personal  estate,  of  what  nature 
or  kind  soever,  to  E.  F.  and  L.  M.,  the  executors  of  this  my  last  will 
and  testament,  hereinafter  nominated  and  appointed,  in  trust  for  the 
payment  of  my  just  debts  and  the  legacies  above  specified,  with  power  - 
to  sell  and  dispose  of  the  same,  at  public  or  private  sale,  at  such  time 
or  times,  and  upon  such  terms,  and  in  such  manner,  as  to  them  shall 
seem  meet;  provided,  however,  that  no  part  of  my  real  estate,  as 
aforesaid,  shall  be  sold  at  public  auction,  until  after  the  expiration  of 
three  years  from  the  time  of  my  decease. 


INDEX. 


ABATEMENT. 

Pleas  in,  .67,  68 

Form  of  pleas  in,  68-71 

ACCESSORIES  TO  CRIMES. 

Who  considered  to  be,  161 

ACTION. 

What  forms  of,  may  be  brought  before  Justice,  32 

Qui  tarn,  in  debt  for  cutting  timber,  44,  45 

ADVERSE  PARTY. 

When  demand,  discount,  or^et-ofF  may  be  proved  by  oath  of,  81 

Form  of  summons  to  obtain  oath  of,  82 

AFFIDAVIT.  \ 

Form  of,  for  ca.  sa.,  152 

Form  of,  for  garnishee  process  on  judgment,  154 

AFFRAY. 

Form  of  warrant  for,  263 

AGENT. 

Of  plaintiff  or  creditor  can  make  oath  or  affidavit  for  warrant,  48 

AGREEMENTS. 

Forms  for,  400-402 

APPEAL. 

May  be  taken  from  judgment  of  Justice  on  award,  111 

Form  of  docket  entry  in  cases  of,  136 

When  granted  from  Justice's  judgment,  143 

Form  of  bond  in  cases  of,  143 

Duty  of  Justice  when  appeal  is  taken,  144 

On  trial  of,  no  exception  taken  to  form  or  service  of  process,  145 

APPEALS. 

Statute  provisions  in  relation  to,  143-145 

Party  appealing,  to  give  bond,  143 

APPEARANCE. 

Of  parties  of  full  age,  56 

Authority  to  appear  may  be  written  or  by  parol,  56 

Married  woman  must  appear  in  person  when  sued  alone,  57 

Idiot  to  appear  in  person,  57 

Of  infants,  57 

Effect  of  default  or  want  of,  58 


438 


INDEX. 


APPRENTICES. 

Forms  for  indenture  of,  &c.,  392-396 
ARBITRATION.     (See  ARBITRATORS.) 
ARBITRATIONS  AND  AWARDS. 

Forms  for,  397-399 
ARBITRATORS. 

When  difference  between  parties  referred  to,  109 

Forms  for  arbitration,  110 

Fees  of,  141 
ARRESTS. 

In  civil  cases,  what  constitutes,  48 

Persons  privileged  from,  48,  49 
In  criminal  cases, 

What  constitutes,  172 

Who  are  liable  to,  388 

How  long  warrant  continues  in  force,  389 
ASSAULT. 

Form  of  complaint  for,  261 

Form  of  warrant  for,  262 
ASSAULT  AND  BATTERY. 

Definition  of,  259 

Provisions  of  statute  in  relation  to,  259-261 

Form  of  information  and  complaint  for,  262 

Form  of  warrant  for,  263 

Form  of  recognizance  of  defendant,  £c.  264 

Form  of  a  venire,  264 

Form  of  juror's  oath  or  affirmation,  265 

Form  of  a  subpoena,  265 

Form  of  oath  of  witness,  265 

Form  of  Constable's  oath,  &c.  265 

Form  of  execution  to  levy  fine  and  costs,  266 
Form  of  execution  to  levy  costs  in  case  of  malicious  prosecution,      266 

Form  of  capias  against  the  body,  or  mittimus,  267 
ASSUMPSIT. 

Of  the  action  of,  34,  35 

Form  of  summons  in,  41 

What  may  be  given  in  evidence  in,  under  general  issue,  71 
ATTACHMENT. 

General  rules  applicable  to  writ  of,  52-54 
Statutory  provisions   in  relation  to    ordinary  proceedings   by, 

against  goods  and  chattels  of  defendant,  273-279 

Form  of  writ  of,  274 

Form  of  bond  by  creditor,  274 

Form  of  affidavit  for,  279 

Form  of  bond,  279 

Form  of  notice,  280 

Form  of  summons  for  garnishee,  &c.,  280 

Of  boats  and  vessels,  statute  provisions,  281-283 


INDEX.  439 

ATTACHMENT.     (Continued.) 

Form  of  affidavit  for,  against  boat  or  vessel,  283 

Form  of  bond  for,  against  boat  or  vessel,  283 

Form  of,  against  boat  or  vessel,  284 

Form  of  affidavit  for,  against  owners  of  vessel,  285 

Form  of  bond  for,  against  owners  of  vessel,  285 

Form  of,  against  owners  of  boat  or  vessel,  286 

Form  of  declaration  or  statement  in,  against  boats  or  vessels,  287 

Form  of  declaration,  &c.,  against  owners  of  vessel,  287 

Form  of  bill  of  particulars,  288 

Form  of  deputation  of  Constable,  pro  tern.,  to  serv.e,  288 

Service  and  return  of  writ  of,  by  Constable,  380,  381 

Form  of  return  on  writ  of,  380 

Form,  wben  no  property  is  found,  380 
On  non-appearance  of  defendant,  Constable  to  serve  notice,  and 

return  original,  with  indorsement  thereon,  to  Justice,  381 

Form  of  indorsement  on  attachment  notice,  381 

BASTARDY. 

Proceedings  in  cases  of,  297-303 
Statute  provisions,                                                                     297,  301-303 

Form  of  complaint,  before  birth,  297 

Form  of  complaint,  after  birth,  298 

Form  of  warrant,  before  birth,  298 

Form  of  warrant,  after  birth,  299 

Form  of  oath  or  affirmation  upon  examination,  299 

Form  of  bond,  299 

Form  of  commitment,  300 
Father,  on  giving  bond,  may  demand  possession  and  control  of 

child,  303 
If  child  surrendered  to  him,  father  bound  to  maintain, 

support  and  educate  during  minority,  303 

May  be  compromised  or  compounded,  at  discretion,  303 

BILL  OF  PARTICULARS. 

Form  of,  to  be  filed  at  commencement  of  suits,  65 

Form  of,  in  attachments  of  boats  and  vessels,  288 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

Forms  for,  412,  413 

MILLS  OF  SALE. 

Forms  for,  414 

BOND. 

To  be  given  by  Justice  upon  going  into  office,  22 

To  whom  payable,  22 

Form  of,  23 

Form  of,  for  security  for  costs,  55 

Form  of,  for  costs  by  next  friend,  57 

Form  of,  on  appeal  from  Justice's  judgment,  143 

Given  on  appeal,  may  be  amended  when  adjudged  informal  or 

insufficient,  145 


440  INDEX. 

BOND.     (Continued.) 

To  be  given  by  party  applying  for  writ  of  certiorari,  146 

Form  of,  for  costs,  in  case  of  fugitives  from  justice,  242 

BONDS. 

Forms  of,  in  ordinary  cases,  415^117 

BURGLARY. 

Form  of  warrant  for,  170 

CA.  SA. 

When  may  be  issued,  152 

Form  of  oath  to  obtain,  152 

Form  of,  152 

Form  of  affidavit  for,  152 

CERTIFICATE. 

Form  of,  by  Justice,  on  change  of  venue,  94 

Form  of,  to  be  added  to  transcript  of  judgment,  142 

Form  of,  in  case  of  fugitives  from  justice,  245 

CERTIORARI. 

Who  have  power  to  grant  writs  of,  146 

When  to  be  granted,  146 

Bond  to  be  given  by  party  applying  for,  146 

In  what  cases  may  be  granted,  146 

When  granted,  proceedings  to  be  stayed,  146 

What  the  petition  for,  shall  contain,  147 

Trial  upon,  to  be  de  novo,  147 

CHALLENGES. 

Of  jurors,  99-102 

CHATTEL  MORTGAGE. 

Form  of  docket  entry,  on  acknowledgment  of,  136 

COMMITMENT.     (See  MITTIMUS.) 

Of  prisoner,  in  default  of  bail,  181 
Forms  for,                                                                                            181-184 

Of  witness  for  refusing  to  enter  into  recognizance,  188 

Form  of,  for  witness  for  refusing  to  enter  into  recognizance,  188 

Form  of,  for  witness  for  want  of  sureties,  188 

Form  of,  for  accomplice  to  give  evidence,  189 

COMPLAINT. 

To  be  made  in  case  of  offense  committed,  164 

Who  competent  to  make,  165 

General  form  of,  in  criminal  cases,  166 

Form  of  oath  of  complainant,  1 66 

CONFIDENTIAL  COMMUNICATIONS. 

Counsel  or  attorney  not  permitted  to  testify  as  to,  126 

CONSTABLE. 

Form  of  oath  of,  on  retiring  with  jury,  108,  265 

Form  of  forthcoming  bond  to,  in  ease  of  appeal  in  trial  of  right 

of  property,  366 

Antiquity  of  office  of,  367 

Office  of,  in  England,  368 


INDEX.  441 

CONSTABLE.     (Continued.) 

Duty  of,  by  common  law,  368 

Extension  of  duties  of,  by  legislative  enactment,  368 

How  chosen  in  this  State,  369 

Election  of,  in  counties  not  adopting  township  organization,  369 

How  many  elected  in  each  precinct,  369 

When  number  may  be  increased,  369 

When  election  shall  take  place,  369 

Vacancies  in  office,  how  filled,  369 

When  Justice  of  Peace  may  appoint,  369 

Election  of,  in  counties  adopting  township  organization,  369 

How  many  chosen  in  each  town,  369 

Term  of  office,  370 

Vacancy,  how  filled,  370 

Qualification  of,  in  counties  not  adopting  township  organization,  370-372 

Must  be  sworn,  before  entering  upon  duties  of  office,  370 

Provisions  of  statute  respecting  bond  to  be  given  by,  370,  372 

To  whom  bond  made  payable,  371 

Form  of  official  bond,  371 

Form  of  oath  of  office,  371 

By  whom  oath  certified,  372 

Resignations  of,  to  whom  made,  372 

Qualification  of,  in  counties  adopting  township  organization,  372-375 

Eequired  to  execute  instrument  in  writing,  with  sureties, 

before  supervisor  or  town  clerk,  373 

Who  to  administer  oath  of  office,  373 
Form  of  instrument  to  be  executed  by  Constable  and 

sureties,  374 

Supervisor  or  town  clerk  to  indorse  and  file  instrument  in 

his  office,  374 

Form  of  such  indorsement,  374 

Within  what  time  actions  must  be  brought  against,  on 

instrument  of  security,  375 
When  action  of  debt  may  be  maintained  on  instrument  of 

security,  375 

Resignations,  to  whom  made,  375 

Special,  when  and  how  appointed,  375,  376 

Statute  provisions,  375 

How  appointment  made,  376 

In  what  cases  Justice  authorized  to  appoint,  376 

Indorsement  should  show  reason  of  appointment,  376 

May  be  appointed  to  preserve  order  at  elections,  376 

Service  and  return  of  process  by,  in  civil  cases,  377-384 

Time  in  which  summons  must  be  served,  377 

Form  of  return  on  summons,  377,  378 
No  right  to  break  open  dwelling-house  in  serving  warrant,  378 
Defendant  may  give  special  bail, 

Form  of  special  bail  to  be  indorsed  on  warrant,  379 


442  INDEX. 

CONSTABLE. 

Service  and  return  of  process  by,  in  civil  cases.     (Continued.) 

Form  of  return  on  warrant,  397 
Form  of  return  on  venire,  379 
Duty  of  Constable  to  complete  jury  panel,  380 
Duty  of  Constable,  on  receiving  writ  of  attachment,  380 
How  to  proceed,  when  unable  to  find  property,  380 
Form  of  return  on  writ  of  attachment,  380 
Form,  when  no  property  is  found,  380 
Form  of  indorsement  by  Constable,  on  return  of  attach- 
ment notice,  380 
Form  of  Constable's  indorsement  on  receiving  execution,  381 
Personal  property  of  defendant  when  bound  for  payment 

of  judgment,  381 

Constable  may  remove  property  for  safe  keeping,  381 
Duty  of  Constable,  when  term  of  office  expires  before 

return  of  execution  in  his  hands,  382 

Form  of  indorsement  of  levy  and  inventory  of  property,  382 

In  sale  on  execution,  property  must  be  present,  384 

Form  of  notice  of  sale,  384 

Form  of  return  on  execution,  384 

Form,  when  no  property  is  found,  384 

Duty  of,  after  sale  on  execution,  384 

Kesponsibility  of  sureties  of,  385 

When  action  on  the  case  lies  against,  in  circuit  court,  386 

General  powers  of,                                                                          387,  388 

Arrests  by,                                                                                          388,  389 

Fees  and  compensations  allowed  to,  in  civil  and  criminal  cases,  390,  391 

CONTEMPT  OF  COURT. 

Justice  may  fine  for,  107 

Statute  provisions,  304 
Power  to  punish  for,  incident  to  all  courts  of  justice,  independent 

of  statute,  304 

Offender  may  be  instantly  apprehended,  without  further  proof,  304 

Form  of  record  of  conviction,  304 

Form  of  commitment  for  a  fine,  305 

Forms  of  commitment  of  witness,  £c.,                                           306,  307 
CONTESTING  ELECTIONS. 

Statutory  provisions,  .  314-316 

Form  of  notice  by  candidate  contesting  election,  316 

Form  of  subpoena  for  witnesses,  316 

Form  of  oath  to  witnes MS,  317 

Form  of  certificate,  or  record  of  proceedings,  317 

Form  of  certificate,  to  lie  attached  to  record,  318 

Form  of  execution  for  costs,  318 
CONTINUANCE. 

When  and  for  what  cause  may  be  granted,  92,  93 

Form  of  oath  on  application  for,  93 


INDEX. 


443 


CONVEYANCES. 
<         Forms  for,  422-425 

COPARTNERSHIP. 

Forms  for,  418-422 

COSTS. 

Can  only  be  recovered  by  express  statute,  139 

In  what  cases  and  to  whom  taxed,  139 

COVENANT. 

Of  the  action  of,  33,  34 

CRIMES. 

Definition  of,  159 

Persons  capable  of  committing,  159-161 

Accessories  to,  .  161 

Who  may  bo  witnesses  in  criminal  cases,  161 

CRIMINAL  CASES. 

Who  may  be  witnesses  in,  161 

Arrests  in,        .  172 

Examination  of  the  accused  in,  173 

DEBT. 

Of  the  action  of,  33 

Form  of  summons  in,  43 

Form  of  summons  in  action  of,  for  cutting  timber,  44 

What  may  be  given  in  evidence  under  general  issue  in,  72 

DECLARATION. 

General  requisites  of,  63-66 

DEEDS. 

Provisions  of  statute  in  relation  to  acknowledgment  and  proof  of, 

by  justice,  289-295 

Various  forms  of  acknowledgment  of,  290-295 

DEFENDANT. 

On  conviction  of,  in  prosecutions  in  behalf  of  the  people,  officers 

must  look  to  defendant's  estate  for  costs,  272 

When  personal  property  of,  bound  for  payment  of  judgment,  381 

DEMURRER. 

When  may  be  interposed,  77 

Nature  and  requisites  of,  77-78 

DEPOSITIONS. 

Taking  of,  83-90 

Forms  for  taking  of,  84-90 

DISCHARGE. 

Of  prisoner,  178 

DISTRESS  FOR  KENT. 

Justices  have  jurisdiction  in  cases  of,  27 

Definition  of,  308 

Party  cannot  distrain  for  part  of  entire  sum  at  one  time_  and  part 

at  another,  308 

But  if  value  of  goods  distrained  be  mistaken,  may  afterwards 
complete  execution  by  further  seizure,  308 


444  INDEX. 

DISTRESS  FOR  RENT.     (Continued.) 

Distress  at  common  law  different  from  that  prescribed  by  statute,      308 

Statute  provisions,  308-310 

Form  of  warrant  of,  by  landlord,  310 

Form  of  inventory,  310 

Form  of  notice  to  tenant,  311 

Individual  proceeded  against  in  case  of,  must  have  notice,  31 1 

Landlord  may  distrain  though  no  power  given  in  lease,  311 

Duty  of  court  in  case  of,  311 

Tenant  may  show  payment  on  account  of  rent,  311 

Goods  of  sub-lessee  not  liable  to  be  distrained,  311 

Form  of  summons  after  goods  distrained,  312 

Form  of  oath  to  appraisers,  312 

Form  of  Constable's  memorandum  on  inventory,  312 

Form  of  appraisement  indorsed  on  inventory,  313 

Form  of  notice  of  sale,  313 

DOCKET  ENTRIES. 

General  requisites  of,  128-130 

General  forms  of,  in  civil  cases,  130-136 
All  proceedings  before  Justice  must  be  entered  upon  his  docket,        269 

General  forms  of,  in  criminal  cases,  269-271 

ESTRATS. 

Statute  provisions  in  relation  to,  320-325 
Party  not  giving  required  notice,  cannot  acquire  property  in,  by 

lapse  of  time  or  by  possession,  326 

Could  not  recover  in  an  action  of  trover,  326 

One  retaining  estray  without  giving  notice,  a  tort  feasor,  326 

Form  of  notice  of,  326 

Oath  of  person  taking  up,  326,  327 

Forms  of  advertisements  of,  &c.,  327,  330 

Form  of  appointment  of  appraisers,  327 

Form  of  warrant  for  appraisers,  328 

Form  of  oath  or  affirmation  of  appraisers,  328 

Form  of  report  of  appraisement,  329 

Form  of  entry  by  Justice  on  estray  book,  329 
Form  of  certificate  of  copy  of  entry,  to  be  forwarded  to  clerk 

of  county  commissioners'  court,  330 

Form  of  affidavit  by  taker  up  of  water  craft,  330 

Form  of  warrant  to  summon  appraisers,  331 

Oath  of  appraisers,  331 

Report  of  appraisers,  331 

Form  of  entry  by  Justice  in  case  of  taking  up  water  craft,  332 

Form  of  advertisement  by  taker  up  of  water  craft,  332 

How  to  proceed  in  counties  adopting  township  organization,  333 

EVIDENCE. 

Nature  of,  113-116 

Competency  of  witnesses,  116-121 

Examination  of  witnesses,  121 


INDEX.  445 

EVIDENCE.     (Continued.) 

Of  written  evidence,  122-125 

Public  and  private  writings,  122 

Of  proof  of  ^-ivate  writings,  123 

Of  proof  of  hand- writing,  124 

Proceedings  before  a  Justice,  how  proved,  125 

Parol  evidence  to  contradict  written  instruments,  125 

Confidential  and  privileged  communications,  126 
EXAMINATION. 

By  Justice,  in  criminal  cases,  173 

Commitment  for  further,  173 

Form  of  commitment  for  further,  173 
Forms  of  summons  to  witnesses,                                                   174,  175 

Form  of  warrant  against  witness  refusing  to  attend,  176 

Form  of  commitment  of  witness  for  refusing  to  testify,  177 

Form  of  oath  of  witness  on,  177 

Form  of,  of  prisoner,  in  case  of  fugitives  from  justice,  244 
EXECUTION. 

Office  and  nature  of,  r  148 

When  to  be  issued,  148 

Form  of  oath  on  swearing  out,  149 

Form  of,  against  the  goods  and  chattels,  149 

When  may  be  issued  to  foreign  county,  149 

Form  of,  to  foreign  county,  150 

When  to  become  lien  on  property  of  defendant,  150 

Levy  to  be  indorsed  on,  1 50 

When  Justice  may  issue,  upon  docket  of  another  Justice,  150 

Form  of,  when  issued  on  docket  of  another  Justice,  151 

Against  the  body,  when  to  issue,  151 

Form  of,  against  the  body,  152 
Service  and  return  of,  by  Constable,                                              381-384 

Form  of  Constable's  indorsement  on  receiving,  381 
Personal  property  of  defendant  bound  for  payment  of  judgment  on,      381 

Constable  may  remove  property  for  safe  keeping,  3§1 

Form  of  notice  of  Constable's  sale  on,  384 

Form  of  return  on,  384 
FEES. 

Of  Justice,  in  civil  cases,  140 

Of  jurors,  141 

Of  witnesses,  141 

Of  arbitrators,  141 

Of  Justice,' in  criminal  cases,  272 
Of  Constable,  in  civil  and  criminal  cases,                                       390, 391 
FEME  COVERT. 

Cannot  be  sued  alone,  62 
FORCIBLE  ENTRY  AND  DETAINER. 

Statute  provisions,  334,  335 

Amendments,  335 


44G  INDEX. 

FORCIBLE  ENTRY  AND  DETAINER.     (Continued.) 

In  what  cases  an  action  for,  may  be  maintained  in  this  State,  336 

What  will  give  Justices  of  the  Peace  jurisdiction  in  actions  of,  336 

What  must  concur,  to  maintain  actions  for,  336 

Not  necessary  to  prove  actual  force,  336 

What  the  complaint  should  show,  336 

Description  of  premises  should  be  exact,  337 

Action  for,  a  civil  remedy,  337 

In  whom  jurisdiction  vested,  337 
What  tenant  not  permitted  to  show,  in  action  of  detainer  by 

landlord,  337 

Technical  strictness  not  required,  337 

What  plaintiff  must  state  in  action  for  forcible  detainer,  337 

Statute  must  be  strictly  followed,  338 

Form  of  complaint  for  entry  without  force,  338 

Form  for  forcible  entry,  338 

Form  of  demand  of  possession,  339 

Form  of  notice  by  agent,  339 

Form  of  complaint  for  forcible  detainer,  340 

Form  of  summons,  340 

Form  of  a  subpoena,  341 

Form  of  precept  for  summoning  a  jury,  341 

Jurors'  oath  upon  traverse,  342 

Form  of  oath  of  witness,  342 

Form  of  record  of  proceedings,  342 

Form  of  writ  of  restitution,  344 

Form  of  execution  for  costs,  345 
FORMS,  COMMON,  FOR  THE  TRANSACTION  OF  BUSINESS. 

Indenture  of  apprenticeship  of  a  minor,  with  the  consent  of  the 

father,  392 
Indorsement  on  indenture  of  apprenticeship,  when  the  father 

covenants  for  faithful  performance  of  his  son,  393 
Indenture  binding  poor  child  by  overseer  of  poor,  under  township 

organization,  394 
Certificate  of  approbation  of  county  Judge  of  the  binding  of  an 

infant  who  has  no  parents  or  guardian  in  the  State,  .         395 
General  form  of  submission,  in  case  of  arbitration,  to  be  made  a 

rule  of  court,  397 

Short  form  of  same,  397 

Arbitration  bond,  to  be  mutual,  398 

Certificate  of  oath  of  arbitrators,  399 

Award  of  arbitrators,  399 
Notice  to  adverse  party  before  judgment  is  entered  upon  an  award 

in  circuit  court,  399 

Agreement,  general  form  of,  400 

Agreement  to  sell  land,  400 

Agreement  for  building,  401 

Agreement  for  the  delivery  of  wheat,  or  other  article,  402 


INDEX.  ,                     447 

FORMS,  COMMON,  FOR  THE  TRANSACTION  OF  BUSINESS.  (Continued.) 

Assignment,  general  form  of,  by  indorsement,  402 
Shorter  form  of  same,  403 
Assignment  of  bond,  by  indorsement,  403 
Conditional  assignment  of  a  bond  to  convey  real  estate,  by  indorse- 
ment, 403 
Assignment  of  a  judgment,  404 
Shorter  form  of  same,  405 
Assignment  of  mortgage  and  notes,  by  indorsement,  403 
Assignment  of  lease,  405 
Assignment  of  moneys  due  on  account,  406 
Assignment  of  shares  in  a  company,  406 
Assignment  of  shares  of  stock,  407 
Assignment  of  notes  of  hand,  407 
Assignment  of  indenture  of  apprenticeship,  407 
Certificate  of  consent  of  parties  to  assignment  of  indentures  of 

apprenticeship,  408 
Assignment  by  debtor  to  trustees  for  benefit  of  creditors,  £c.,     408-411 

Foreign  bill  of  exchange,  412 
Ordinary  bill  of  exchange  or  draft  at  a  certain  time  after  sight,         412 

Check  or  draft  on  a  bank,  412 

Promissory  note  not  negotiable,  413 

Note  negotiable  by  indorsement,  413 

Joint  negotiable  note,  for  money  loaned,  413 

Negotiable  note,  payable  in  property,  413 

Bill  of  sale  of  goods,  414 

Deed  of  gift  of  personal  estate,  414 

Bond,  common  form  of,  415 

Bond  for  a  deed,  415 

Bond  from  two  to  one,  416 

Condition  of  bond  for  payment  of  money  at  different  times,               417 

Condition  of  bond  for  conveyance  of  real  estate,  417 

Articles  of  copartnership,  418 

Agreement  to  continue  a  partnership  by  indorsement  thereon,            420 

Agreement  for  a  law  partnership,  420 

Agreement  to  dissolve  a  copartnership,  421 

Agreement  for  a  limited  law  partnership,  421 

Warrantee  deed,  422 

Quit-claim  deed,  423 

Deed  of  gift  of  real  estate,  424 

Mortgage,  425 
Usual  form  of  lease, 
Another  form  of  lease, 

Short  form  of  lease,  428 

General  form  of  letters  of  attorney,  429 
Letter  of  substitution  appended  to  power  of  attorney, 
General  letter  of  attorney  to  collect  debts, 
Revocation  of  letters  of  attorney, 


448  INDEX. 

FORMS,  COMMON,  FOR  THE  TRANSACTION  OF  BUSINESS.     (Continued.) 

Warrant  of  attorney  to  confess  judgment  on  note,  431 

Short  form  of  same,  431 

General  form  of  release,  432 

Release  of  trust  deed,  433 

Form  of  will  of  real  and  personal  estate,  433 

Form  of  codicil  to  a  will,  434 

Nomination  of  executors  in  a  will,  435 

•            Devise  to  executor  in  trust,  with  power  to  sell.  &c.,                             435 

FUGITIVES  FROM  JUSTICE. 

Provisions  of  statute  in  relation  to,  241,  242 

Form  of  warrant,  in  case  of,  243 

Form  of  examination  of  witnesses,  244 

Form  of  examination  of  prisoner,  244 

Form  of  certificate,  245 

GARNISHMENT. 

Garnishees,  when  to  be  summoned,  154 

Form  of  affidavit  for  garnishee  process  on  judgment,  154 

Form  of  garnishee  summons,  155 

Form  of  oath  to  garnishee,  155 

HAND-WRITING.  , 

How  proved,  124 

INCLOSURES  AND  FENCES. 

Statute  provisions,  346,  349,  352-354 
What  town  officers  to  be  fence  viewers,  ex  offido,  346 
Before  a  party  can  be  held  liable  to  make  or  repair  fence,  propor- 
tion to  be  repaired  must  be  agreed  upon,  347 
Form  of  agreement  to  divide  partition  fence,  347 
Forms  of  certificates  of  fence  viewers,  348,  349 
Form  of  notice  by  fence  viewers,  350 
Form  of  request  by  adjoining  owner,  &c.,  350 
Form  of  notice  by  two  Justices,  &c.,  351 
Form  of  order  of  two  Justices,  &c.,  351 
Form  of  warrant  of  distress,  352 

INFANTS,     (see  MINORS.) 

JUDGMENT. 

Definition  of,        .  137 

Language  of,  137 

Different  kinds  of,  in  civil  cases,  137,  138 

Admission  of  party  not  confession  of,  139 

JURORS. 

Who  competent  to  serve  as,  98 

Attachment  against,  for  default  of  attendance,  98 

Form  of  attachment  against,  9$ 

Challenging  of,  99-102 

Form  of  oath  touching  competency  of,  102 

Form  of  oath  to  try  cause,  103 

Fees  of,  141 

Form  of  oath  of,  in  assault  and  battery,  265 


INDEX.  449 

JURISDICTION. 

Justices  to  have,  throughout  their  county,  f  24 

Of  Justices  of  the  Peace,  conferred  by  statute,  26,  27 

Of  subject  matter,  29 

Of  the  person,  30 

Proceedings  without  jurisdiction,  31 

Formal  plea  to,  unnecessary,  31 

Pleas  to,  66,  67 
JURY. 

Trial  by,  96-103 

Who  competent  to  serve  on,  98 

Swearing  of,  103 

Form  of  oath,  103 

Polling,  manner  of,  109 
JUSTICE  OF  THE  PEACE. 

Why  so  called,  1 7 

Antiquity  of  the  office  of,  1 8 

Not  always  held  liable  for  trifling  mistakes,  19 

Office  exists  in  this  country  by  statute,  1 9 

To  be  elected  by  the  people,  1 9 

Term  of  office,  four  years,  19 

Election  of,  in  counties  not  adopting  township  organization,  20 

When  to  be  elected,  20 

Statute  provisions  in  relation  to,  20 

How  many  to  be  elected  in  each  precinct,  20 

Vacancy  in  office,  how  filled,  21 

Election  of,  in  counties  adopting  township  organization,  21 

When  to  be  elected,  21 

How  many  elected  in  each  town,  21 

To  be  commissioned  by  Governor  of  State,  21 

Effect  of  less  number  of  Justices  being  chosen  than  allowed 

by  law,  22 

Qualification  of,  22 

Required  to  take  oath  on  entering  upon  the  duties  of,  23 

Required  to  give  bond,  23 

To  whom  bond  made  payable,  23 

Territorial  extent  of  jurisdiction  of,  24 

To  receive  money  on  demands  held  for  collection,  24 

To  whom  resignations  must  be  made,  24 

General  jurisdiction  of,  in  civil  cases,  as  given  by  statute,  26,  27 

Cannot  take  jurisdiction  by  implication,  29 

How  suits  shall  be  instituted  before,  40 

When  to  issue  summons  for  commencement  of  suits,  40 

When  to  issue  warrant,  46 

Proceedings  before,  how  proved,  125 

Fees  of,  in  civil  cases,  140 

To  be  conservators  of  the  peace,  157,  234 

May  require  surety  of  the  peace,  157 

28 


450  INDEX. 

JUSTICE  OF  THE  PEACE.     (Continued.) 

Duty  of,  when  criminal  offense  is  committed,  162-164 

Powers  and  duties  of,  under  particular  statutes,  273-366 

On  non-appearance  of  defendant,  cause  to  be  continued  by,  ten 

days,  and  notice  served  on  defendant,  380 

To  direct  Constable  to  complete  panel,  on  discharge  of  juror,  380 
Personal  property  of  defendant  bound  for  payment  of  judgment 

before,  381 

LARCENY. 

Form  of  warrant  for,  .  169 

LEASES. 

Forms  for,  426-428 

LIBERATE. 

Form  of,  to  discharge  one  committed  for  want  of  sureties,  240 

MARRIAGES. 

Statute  provisions,  355-357 

Form  of  marriage  ceremony,  357 
A  shorter  form  of  same,                                                                   .         358 

Form  of  certificate  of  marriage,  358 

MIKORS. 

To  bring  suit  by  next  friend,  57 

Security  for  costs  to  be  given  by  next  Mend  of,  57 

Form  of  bond  for  security  of  costs,  57 

MITTIMUS. 

Forms  for,  181-184 

Form  of,  for  want  of  sureties,  239 

Form  of,  in  assault  and  battery,  267 

NON-IvESIDENTS. 

To  give  security  for  costs  in  commencing  suits,  54 

NON-SUIT. 

Justice  to  give,  when  plaintiff  fails  to  appear,  58 
OATH. 

Form  of,  for  warrant,  in  cases  for  debt,  47 

Form  of,  for  warrant,  in  case  of  trespass  or  trover,  48 

For  warrant,  can  be  made  by  agent  of  plaintiff,  48 

Form  of,  by  adverse  party,  to  prove  demand,  &c.,  93 

Form  of,  for  change  of  venue,  94 

Form  of,  touching  competency  of  juror,  102 

Form  of,  for  jury  to  try  cause,  103 

Forms  of,  to  witness  on  trial,  105 

Form  of,  by  party  denying  signature,  107 

Form  of,  for  Constable  retiring  with  jury,  108 

Form  of,  in  swearing  out  execution,  149 

Form  of,  for  cri.  sa.  1 52 

Form  of,  to  garnisluv,  155 

Form  of,  on  complaint  in  criminal  cases,  166 

Form  of,  to  witness  in  criminal  examinations,  177 

Form  of,  to  witnesses,  in  case  of  fugitives  from  justice,  242 


451 


OATH  OF  OFFICE. 

Form  of,  for  Justice  of  the  Peace,  23 

OATHS  AND  AFFIRMATIONS. 

Nature  of  an  oath,  90 

Nature  of  an  affirmation,  91 

General  form  of  oath,  91 

Form  of  affirmation,  91 

OBSERVANCE  OF  THE  PEACE. 

Proceedings  in  relation  to,  234-240 

Justice  may  compel  certain  persons  to  give  sureties  for,  234 

In  default  of  such  surety,  may  commit  to  prison,  234 

PARTIES  TO  THE  ACTION. 

Who  shall  be  plaintiffs,  61,  62 

Who  shall  be  defendants,  62 

When  may  be  sworn,  105 

Form  of  oath,  81 

Not  to  deny  signature  except  made  under  oath,  106 

Form  of  oath  denying  signature,  107 

Have  benefit  of  certain  provisions  on  appeals,  145 

PERSONAL  PROPERTY. 

Injuries  to,  36,  37 

PLEADINGS. 

In  general,  60,  61 

Proper  parties  to  the  action,  61 

Of  the  plaintiffs,  61,  62 

Of  the  defendants,  62 

In  Justice's  courts,  62,  63 

Of  the  declaration,  63-66 

On  the  part  of  defendant,  66-77 

When  incumbent  on  defendant  to  plead,  66 

General  order  of,  66 

To  the  jurisdiction  and  in  abatement,  66-68 

Pleas  in  bar,  71-73 

General  issue,  when  to  plead,  73 

Set-off,  73 

Recoupment,  74 

Pleas  puis  darrein  continuance,  75 

Pleading  title,  75-77 

Of  the  replication,  77 

Of  demurrers,  77,  73 

PLEAS  PUIS  DARREIN  CONTINUANCE. 

When  may  be  interposed.  75 

POWERS  OF  ATTORNEY. 

Forms  for,  429-432 

QUALIFICATION. 

Of  Justice  of  the  Peace,  22 

Required  to  be  sworn,  22 

Required  to  give  bond,  22 


452  INDEX. 

QUALIFICATION. 

Of  Justice  of  the  Peace.     (Continued.) 

To  whom  the  bond  shall  be  made  payable,  22 

Form  of  oath  of  office,  23 

Form  of  official  bond,  2" 
Of  Constable. 

Required  to  be  sworn,  370 

Must  give  bond,  370 

To  whom  bond  made  payable,  371 

Form  of  bond,  371 

Form  of  oath  of  office,  371 
Form  of   instrument  to  be  executed  by  Constable   and 

sureties,  for  performance  of  duties,  374 
QDI  TAM  ACTION. 

When  brought  for  trespass  by  cutting  timber,  44,  75 

Form  of  summons  in  case  of,  44 

Security  for  costs  to  be  given  in,  55 
REAL  PROPERTY. 

Injuries  to,  37,  38 

RECOGNIZANCE. 

Of  defendant,  on  pleading  title  to  land,  7 1 

Justice  to  take,  of  prisoner,  173 

To  be  taken  to  the  people  in  criminal  matters,  179 

Form  of,  by  prisoner,  179 

Form  of,  by  two  prisoners,  1 80 

Form  of,  by  infant  or  married  woman,  180 

Of  witness  in  criminal  examinations,  185 

Forms  for,  of  witness  in  criminal  examinations,  186 

Form  of,  by  prisoner  after  commitment,  190 

Form  of,  by  witness  after  commitment,  191 

Form  of,  for  the  peace  or  good  behavior,  238 
RECOUPMENT. 

Mutual  demands  may  be  adjusted  by,  74 
RELEASES. 

Forms  for,  432,  433 

REPLICATION. 

Nature  of,  77 
RESIGNATION. 

Of  Justice  of  the  Peace,                                                                    24,  25 
To  whom  made,  24 
Books  and  papers  must  be  handed  to  nearest  Justice,  25 
Of  Constable,                                                                                  372,  375 
To  whom  made  in  counties  not  adopting  township  organi- 
zation, 372 
In  counties  adopting  township  organization,  37") 
KK;HT  OF  PROPERTY,  TRIAL  OF, 

Statute  provisions,  359-362 

What  evidence  may  be  introduced  on,  between  mortgagee  and 

execution  creditor  of  mortgagor,  362 


INDEX.  458 

RIGHT  OF  PROPERTY,  TRIAL  OF.     (Continued.) 

When  justice  may  proceed  in,  362 

Constable  hel'd  responsible  for  giving  notices,  362 
Plaintiff  must  show  title  to  property  in  actions  of  trespass  against 

others  than  Constable,  363 
Defendant  in  execution  cannot  be  witness  in,  363 
Landlord  distraining  goods  of  tenant  subsequently  taken  in  exe- 
cution, may  claim  them  on,  363 
What  is  sufficient  to  state  in  notice  served  on  Constable  by 

claimant,  363 

Effect  of  verdict  against  claimant,  363 

Claimant  must  show  affirmatively  his  right  of  property,  363 

Claimant  cannot  object  to  execution  on,  in  circuit  court,  363 

Form  of  notice  to  Constable,  363 

Form  of  notice  to  plaintiff,  364 

Form  of  subprena  for  witness,  364 

Form  of  finding  of  jury,  365 

Form  of  execution  for  costs,  365 

Forthcoming  bond  to  Constable,  in  case  of  appeal,  366 

SABBATH  BREAKING. 

Form  of  warrant  for  offense  in  Justice's  presence,  252 

Form  of  information,  252 

Form  of  warrant,  on  information,  253 

Form  of  record  of  conviction  for  offense  in  view  of  Justice,  253 

Form  of  record  of  conviction  on  information,  254 

Form  of  warrant  of  distress  to  levy  fine  and  costs,  254 

SEARCH  WARRANTS. 

Provisions  of  statute  in  relation  to,  246 

Form  of,  247 

Form  of  warrant  for  witness  in  case  of,  247 

Form  of  record  in  case  of,  248 

SECURITY  FOR  COSTS. 

To  be  given  in  suits  by  non-residents,  54 

Form  of  bond  for,  55 

To  be  given  in  suits  on  office  bonds,  55 

In  what  other  actions  to  be  given,  55 

To  be  given  by  next  friend  in  suit  by  minor,  57 

Form  of  bond  for,  by  next  friend,  57 

SET-OFF. 

Party  not  bound  to  give  credit  for  exact  amount  of,  before  trial,          28 

To  what  amount  Justice  has  jurisdiction  in  case  of,  28 

When  may  be  proved  by  oath  of  defendant,  81 

Form  of  oath  of  defendant  to  prove,  81 

SIGNATURE. 

Party  not  to  deny  except  under  oath,  106 

Form  of  oath,  107 

SPECIAL  BAIL. 

Defendant  may  give,  when  arrested  on  warrant,  49 

Form  of,  49 


454  INDEX. 

I 

SPECIAL  BAIL.     (Continued.) 

Form  of  summons  against,  50 

Defendant  may  be  surrended  by,  51 

May  arrest  principal  on  Sunday,  51 

SPECIAL  CONSTABLES. 

When  and  how  appointed,  375,  376 

STATEMENT  OF  OFFENSES,  FORMS  OF. 

For  murder,  193,  194 

For  suspicion  of  murder,  194,  195 

Against  accessories,  195,  196 

For  manslaughter,  196 

For  suspicion  of  manslaughter,  196 

For  mother  concealing  death  of  bastard  child,  196 

For  dueling,  197 

For  challenging  a  person  to  fight  a  duel,  197 

For  accepting  a  challenge  to  fight  a  duel,  197 

For  delivering  a  challenge,  198 

For  being  present  at  the  fighting  of  a  duel  as  a  second,  198 

For  attempt  to  murder  by  poisoning,  1 98 
For  administering  poison  to  procure  the  miscarriage  of  a  woman 

with  child,  198 

For  mayhem,  1 99 

For  a  rape,  199 
For  having  carnal  knowledge  of  a  female  child  under  ten  years 

of  age,  199 

For  sodomy,  1 99,  200 

For  an  assault  with  intent  to  commit  murder,  200 

For  an  assault  with  intent  to  commit  rape,  200 

For  an  assault  with  intent  to  commit  robbery,  200 

For  an  assault  with  a  deadly  weapon,  with  intent  to  inflict  a 

bodily  injury,  200 

For  false  imprisonment,  201 

For  kidnapping,  201 

For  kidnapping  free  negroes,  201 

For  arson,  202 

For  suspicion  of  arson,  202 
For  setting  fire  to  a  storehouse,  £c.,  with  intent  to  burn  the  same,     202 

For  burglary  and  larceny,  202 

For  suspicion  of  burglary  and  larceny,  203 

For  burglary,  203 

For  suspicion  of  burglary,  20."> 

For  robbery,  204 

For  larceny,  204 

For  suspicion  of  larceny,  204 

For  suspicion  of  stealing  a  horse,  &c.,  205 
For  suspicion  of  larceny  in  stealing  writings  relating  to  real  estate,    205 

For  suspicion  of  larceny  in  stealing  a  promissory  note.  205 

For  picking  pockets  or  otherwise   privately  stealing  from  the 

person,  205 


INDEX. 


455 


STATEMENT  or  OFFENSES,  FORMS  OF.     (Continued.) 

For  larceny  in  stealing  from  a  house  in  the  'day-time,  206 

For  receiving  stolen  goods,  206 

For  suspicion  of  receiving  stolen  goods,  206 

For  marking  or  branding  a  horse,  &c.,  with  intent  to  steal  him,  206 

For  altering  or.  defacing  marks  or  brands,  207 

For  officers  embezzling  money,  &c.,  207 

For  officers  failing  and  refusing  to  pay  over  money,  &c.,  207 

For  fraudulently  and  maliciously  destroying  papers,  &c.,  208 

For  removing  land-marks,  208 

For  embezzlement  by  a  clerk,  servant,  &c.,  208 

For  forging  a  will,  209 

For  suspicion  of  forging  a  deed  of  lands,  209 

For  forging  a  promissory  note,  209 

For  suspicion  of  forging  a  promissory  note,  210 

For  suspicion  of  forging  a  receipt,  210 

For  suspicion  of  forging  bank  notes,  210 

For  uttering  a  forged  bank  note,  211 

For  uttering  an  altered  bank  note,  21 1 

For  uttering  a  forged  county  order,  211 

For  counterfeiting  coin,  21 1 

For  suspicion  of  counterfeiting  coin,  212 

For  passing  counterfeit  coin,  212 

For  offering  to  pay  counterfeit  coin,  212 

For  having  in  possession  counterfeit  coin,  with  intent  to  ntter,  212 
For  having  in  possession  forged  bank  bills,  with  intent  to  pass 

them,  213 

For  having  in  possession  fictitious  notes,  with  intent  to  utter,  213 

For  having  in  possession  apparatus  for  counterfeiting  coin,  213 
For  having  in  possession  apparatus  for  counterfeiting  bank  bills,        214 

For  perjury,  214 

For  subornation  of  perjury,  215 

For  acknowledging  a  deed  in  the  name  of  another,  216 

For  resisting  an  officer  in  the  discharge  of  his  duty,  216 
For  rescues,                                                                                        217,  218 

For  assisting  a  prisoner  to  escape,  218 

Against  an  officer,  for  escape  of  prisoner,  219 

For  officer  refusing  to  arrest,  219 

For  compounding  offense,  220 

For  embracery,  220 

For  common  barratry,  221 

For  maintenance,  221 

For  extortion,  by  a  Justice,  221 

For  extortion,  by  Constable,  222 

For  disturbing  the  public  peace,  223 

For  an  unlawful  assembly,  223 

For  a  rout,  224 

For  a  riot,  224 


456  INDEX. 

STATEMENT  OF  OFFENSES,  FORMS  OF.     (Continued.) 

For  bigamy,  against  the  husband,  225 

For  bigamy,  against  the  wife,  225 

For  marrying  wife  of  another,  225 

For  incest,  225 

Against  a  father,  for  cohabiting  with  his  daughter,  225 

For  adultery,  225 

For  fornication,  226 

For  keeping  a  disorderly  house,  226 

For  open  lewdness,  226 

For  keeping  a  lewd  house,  226 

For  keeping  an  open  tippling  house  on  the  Sabbath,  227 

For  keeping  a  common  gaming  house,  227 
For  obstructions,                                                                                 227,  228 

For  selling  unwholesome  provisions,  228 

For  defacing  notices,  228 

For  having  tools  to  break  into  dwelling-house,  &c.,  229 

For  having  weapons  with  intent  to  assault,  &c.,  229 

For  disinterring  the  dead,  229 

For  voting  more  than  once  at  an  election,  230 

For  fraudulently  conveying  property,  &c.,  230 

For  swindling,  231 

For  obtaining  goods,  &c.,  by  false  pretenses,  231 

For  fraudulently  selling  land  a  second  time,  231 

For  selling  by  false  weights,  &c.,'  232 

For  destroying  a  bridge,  £c.,  232 

For  suspicion  of  girdling  fruit  trees,  232 
For  maliciously  killing  an  ox,  &c.,                                                   .         233 

For  suspicion  of  maliciously  disfiguring  a  horse,  233 

For  setting  on  fire  prairie,  &c.,  233 

SUBPCEXA. 

When  Justice  shall  issue,  79 

General  form  of,  79 

Form  of  subpoena  duces  tecum,  80 

Form  of,  in  assault  and  battery,  265 

SUITS. 

Manner  of  instituting  before  Justices,  40 

When  commenced  by  summons,  40 

What  considered  commencement  of,  40 

By  voluntary  agreement  of  parties,  52 

To  be  dismissed  when  plaintiff  fails  to  appear,  58 

SUMMONS. 

General  form  of,  4 1 

When  made  returnable,  41 
To  be  served  ut  least  three  days  before  trial,                                    41,  377 

Form  of  indorsement  on,  41 

Form  of,  in  trespass  on  personal  property,  43 

Form  of,  in  trover,  43 


INDEX. 


457 


SUMMONS.     ( Continued. ) 

Form  of,  in  debt,  43 

Form  of,  in  debt  by  cutting  timber,  44 

Form  of,  in  qui  tarn  actions,  45 

Form  of,  against  special  bail,  50 

General  rules  applicable  to,  52-54 

To  be  issued  by  circuit  clerk  in  cases  of  appeal,  145 

Form  of,  against  garnishee,  155 

Form  of  Constable's  return  on,  377,  378 

SUNDAY. 

Special  bail  may  arrest  his  principal  on,  51 

SUPEESEDEAS. 

To  be  issued  by  circuit  clerk  in  case  of  appeals,.  144 

SURETY  OF  THE  PEACE. 

In  what  it  consists,  234 

Form  of  mittimus  for  want  of,  239 

TRANSCRIPT. 

Of  Justice's  judgment,  when  filed  in  circuit  clerk's  office,  141 

When  filed,  to  have  effect  of  judgment  in  circuit  court,  141 

To  be  certified  by  Justice  making  same,  142 

Form  of,  142 

TRESPASS  . 

On  personal  property,  Justices  have  jurisdiction  in  cases  of,  27 

On  real  estate,  Justices  have  jurisdiction  in  cases  of,  28 

Trespass  generally,  36 

Trespass  on  personal  property,  what  it  lies  for,  36,  37 

Injuries  to  real  property  defined,  37,  38 

Form  of  summons  in,  43 

Warrant  in  action  of,  47 

Form  of  oath,  for  warrant  in  case  of,  48 

What  may  be  given  in  evidence  under  general  issue  in.  73 

TRIAL. 

In  the  absence  of  defendant,  95 

Before  the  Justice  without  a  jury,  95,  96 

Trial  by  jury,  96-103 

When  jury  demanded,  and  how  obtained,  96,  97 

Proceedings  on,  103-10!) 

TROVER. 

Of  the  action  of,  39 

Form  of  summons  in,  43 

Warrant  in  action  of,  47 

Form  of  oath,  for  warrant  in  case  of,  48 

What  may  be  given  in  evidence,  under  general  issue  in,  ~~2 

VACANCIES. 

In  the  office  of  Justice,  how  filled,  21 

In  the  office  of  Constable,  how  filled,  369,  37<> 

VARIOUS  MISDEMEANORS. 

Proceedings  in  relation  to,  350 

Provisions  of  statute,  250-252 


458  INDEX. 

VENIRE. 

When  to  be  granted,  94 

Form  of  oath  for,  94 

Duty  of  Justice  on  application  for,  94 

Form  of  Justice's  certificate  to  accompany  papers,  94 

General  form  of,  97 

New  venire,  when  issued,  102 
Service  and  return  of,  by  Constable,                                             379,  380 

Duty  of  Constable  on  receiving,  379 

Form  of  return  on,  379 
VERDICT. 

Manner  of  receiving,  109 
VOIR  DIRE. 

Juror  may  be  examined  on,  102 

Witness  may  be  examined  on,  105 

Form  of  oath  of,  105 
WARRANT. 

General  forms  of,  in  civil  cases,  46 

Justice  to  issue  in  action  of  trespass  or  trover,  47 

Form  of  oath  for,  in  cases  for  debt,  47 

Form  of  oath  for,  in  case  of  trespass  or  trover,  48 

General  rules  applicable  to,  52,  54 
General  requisites  of,  in  criminal  cases,  166-168 

General  form  of,  168 

Form  of,  to  a  private  person,  168 

Form  of  order  on,  to  private  person,  168 

Form  of,  for  larceny,  169 

Form  of,  for  burglary,  170 
Form  of,  for  hue  and  cry,  170-172 

Form  of,  for  the  peace,  235 
Form  of,  for  good  behavior,  236,  237 

Form  of,  in  case  of  fugitives  from  justice,  243 

Form  of,  for  witness,  in  case  of  search  warrant,  247 
Sen-ice  and  return  of,  by  constable,  378,  379 
Officer  no  right  to  break  open  dwelling-house,  in  serving,  378 
But  if  defendant  escape  from  officer,  dwelling-house  no 

protection,  379 

Defendant  may  give  special  bail  when  arrested  on,  379 

Form  of  special  bail  to  be  indorsed  on,  379 

Form  of  Constable's  return  on,  379 

WILLS. 

Forms  for,  433-435 

WITNESS. 

Attachment  against,  in  default  of  attendance,  82 

Form  of  attachment,  83 

Form  of  oath  of,  generally  or  in  chief,  105 

Form  of  oath  of,  on  voir  dire,  105 

Form  of  oath  of,  to  prove  interest  of  another  witness,  105 


INDEX.  459 

WITNESSES. 

Fees  allowed  to,  80 
Competency  of,                                                                               116-121 

Examination  of,  121 

Fees  of,  141 

Who  may  be,  in  criminal  cases,  161 

Form  of  examination  of,  in  case  of  fugitives  from  justice,  244 

WORSHIPING  ASSEMBLIES. 

Forms  of  complaint  in  case  of  di*turbin«r,  255,  256 

Form  of  warrant,  257 

Record  of  conviction,  257 

Warrant  of  distress,  258 


n 


S55 


